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The Next Battle: SF City Attorney subpoenas a Vaccine Exemption Writing Doc under a Public Nuisance Theory

The Next Battle: SF City Attorney subpoenas a Vaccine Exemption Writing Doc under a Public Nuisance Theory

Yesterday afternoon and today, there is a nationally breaking story about San Francisco physician Ken Stoller receiving a subpoena from the San Francisco City Attorney for all his medical records for all vaccine exemptions he has written.

The City’s Attorney’s action has been widely publicized in the California press and TV media, and
and nationally, so far in the Wall Street Journal and the Beast.

Of course, most of these stories key in on the increase in the reported number of measles cases which has most people alarmed. And that creates a challenging environment.

For what it’s worth, I haven’t found a single direct precedent for a government agency using a public nuisance theory on which to base an investigation seeking medical records for a possible public nuisance violation. I have seen a legal professor advocate using public nuisance as a basis to directly challenge families with PBEs/religious exemptions, but that hasn’t turned into a case, so far as I can tell. Maybe the City Attorney thinks going after a physician is an easier target.

One thing I’m fairly confident about: If they get away with it here, expect this to play at a theater near you soon, since every state, save West Virginia and Mississippi has physicians writing medical exemptions.

I have it on good authority that Dr. Stoller’s lawyer is carefully reviewing the subpoena and applicable law. Since the vaccine exemptees are the unnamed vectors of the alleged public nuisance, at some point, some of them might have something to say about the subpoena, especially those who don’t live in San Francisco.

The other issue of concern is that there does not appear to be any evidence that Dr. Stoller or any of the other exemption writing doctors have engaged in fraudulent exemption writing. It all seems to stem from Senator Pan’s unsupported allegations to sell SB 276. They can’t be getting exemption information from the schools because the records are federally privacy protected under FERPA. It’s unlikely that any of Dr. Stoller’s patients have turned over medical records, so a fair question, which hopefully will be asked, is what is the specific factual basis of the investigation?

Finally, to families who received medical exemptions from Dr. Stoller, I have it on good authority that no action will be taken without first informing you of a decision to comply with the subpoena, if that’s what happens. Despite the fact that the subpoena seeks the redaction of personal identifying information, there are still California constitutional privacy issues affecting the patients, which will be discussed at a different time and place. It is possible that some of these families may come forward publicly in some protected forum.

And lastly, my good authority referenced above is me. I am Ken Stoller’s attorney.

Here is the LA Times about the case.

Wish me luck (and prayers humbly accepted also).

Rick Jaffe, Esq.