We had the hearing in Ken Stoller’s stay application which started a few minutes late. I don’t think any of you saw it because the instructions changed. It was held in zoom department 1 and not department 17 which is the judge’s regular part.
It was a very spirited discussion between me and the judge. He is a very smart fellow but conventional and believes he has a very limited role of review on these administrative mandates.
I started by pointing out a mistake he made in the decision, which was important to us on a central issue. He stated that the Board had found that Ken had not examined any of the patients. That was incorrect. The Board specifically stated that he had examined 5 of the ten patients, on four others the board made no finding either way (and I assured the judge that the medical records contained the results of the physicals in each of these cases) while in the case of one patient, an infant, there was no height or weight recorded because the infant was sleeping and he didn’t want to wake him and focused on the child’s main issue being a heart murmur.)
The judge confirmed the mistake and said that he didn’t think it would change his decision, but was open-minded enough to say that he wanted to consider it overnight and that he would probably put out an amended decision. This was important to our argument since the board found and he accepted that Ken didn’t do a “good faith prior examination of the patient” and I pointed out that it would be understandable for the judge to adopt that position if there had not been an examination of the patients. Anyway, I expect him to put out an amended decision since he’s not going to want to have the final decision be obviously wrong on a pretty important point.
Beyond that, his feeling was that he didn’t think the legislature intended to let every doctor do whatever they wanted in terms of writing medical exemptions and that doctors had to follow the standard of care and respect and follow medical authority. We had a long and cordial exchange on that and from my view how that flies in the face of the complementary and alternative health statute, Bus. & Prof. Code Section 2234.1 which I quoted gives alternative and complementary physicians specifically the right to practice “those health care methods of diagnosis, treatment or healing which are not generally used….”
I can’t say I convinced him. I also pointed out that under the CAM standard of care for writing ME’s, there is no requirement for obtaining prior records and since the Board’s expert didn’t know anything about that alternative standard of care, the board produced no evidence whatsoever as to what is required in “good faith prior examination” required in the first part of the CAM statute, which means we win on the issue because we had evidence that obtaining prior medical records is not required under the CAM standard of care.
He didn’t think the words of one Senator mattered (in my referencing the Senator Pan cousin comment), and he didn’t think he could substitute his judgment for the board’s in terms of a sanction.
While he is right about not substituting his judgment, there is on-point case law stating that relying on the advice of counsel (which Ken did in deciding to write these MEs) especially on a new statute which has not yet been interpreted by the courts, which is absolutely the case here, justifies a sanction other than license revocation. I went after the revocation sanction hard, but ultimately, he was just reluctant to second-guess the board’s decision. I think that is the biggest and most obvious problem in the Board’s case and the one most likely as a basis of reversal on appeal, based on prior appellate courts doing just that for the exact same circumstances as in our case, very rare circumstances that they may be.
But before we get there, there will be further briefing and the case will be heard by the Superior Court judge (Judge Arguelles) and a final decision on the writ will be issued. Honestly, I am not expecting a different result since he said that he thought doctors still have to follow the standard of care, as established by the Board expert. I think it is that simple for him.
That’s about it. I am sorry none of you could hear it because let just says I was very, very blunt at times, up to an including asserting that the board’s revocation order was an attempt to intimidate doctors into settling. He was somewhat open to that and said that if there was some internal board memo indicating that, he would like to know about it, but he doubted I would be able to get my hands on such a memo even if it exists. I think the hearing was also very instructive as to how the courts look at these issues, for better or worse, but mostly for the worse.
Rick Jaffe, Esq.