Today I filed the the petition for review in Ken Stoller’s medical board case. It’s a long shot (at best) that the case will be accepted for the highly discretionary review by the court. It’s not like an appeal to an appellate court which has to take a case. It is more like (or exactly like) a certiorari petition in the US supreme court.
Needless to say, we think there are some important issues which the people of California deserve to have addressed. I won’t bore you with the whole petition, but I will share the short public policy we argued to the court. It is something which most will agree with.
“As to the final reason why this Court should hear this case, the legislative history manifests that the Legislature intended to provide a quid pro quo for the removal of the personal belief exemption, in the form of a more robust medical exemption which was not limited to the ACIP guidelines. The sanctioning of the Petitioner for doing what the law and its sponsors said he (and other doctors sanctioned for the same conduct) could do, constitutes a breach of the public’s trust in the legislative process. To help repair this breach of trust, this Court should at least give Petitioner a full opportunity to present his case on the merits.
Finally, cases are not litigated in a vacuum or adjudged by computers. The world is a different place than it was when the Accusation against Petitioner was filed in July 2019. And it is different from when this case was tried in September 2020. The obvious difference being the pandemic and the Covid-19 vaccine.
These changes have caused a high degree of polarization in this country. Beyond the vaccine mandates and safety issues (now it is the safety of the vaccine for children under five), there is another critical issue which in the long term will have a greater effect on public health than the pandemic; that being the freedom of health care professionals and scientists to speak their minds and act in accordance with their best medical judgment even if that speech or those actions conflict with current prevailing theories or conventional “medical science.”
Like the rest of the country, California is embroiled in the public debate about vaccine mandates, vaccine safety, personal choice, informed consent, and the right and limitations of parents to make decisions about their children. California is also a state which gives statutory recognition for health care practitioners to practice medicine in a way not recognized by the majority of practitioners. And, for a time (under SB 277), it appeared to allow physicians to write medical exemptions to mandatory vaccination for reasons which mainstream physicians like the Board’s expert, in this case, would view as unscientific and dangerous.
However, we would submit that the most dangerous thing a society can do is stifle the opinions of a substantial minority of practitioners and scientists who do not accept the prevailing opinions of government health care institutions, mainstream professional organizations, or one medical specialty (infectious disease) together who are attempting to eliminate public debate.
This Court is the highest court of the most populous state in the country. However this Court would decide on the merits, in the times we live in, it would be a great service to the people of California if the Court considers these issues and gives the citizens its best considered and dispassionate thinking.”
We should know within 60 days if the Supreme Court accepts the case and orders a full briefing schedule.
Rick Jaffe, Esq.