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Update on the California Medical Board cases against physicians for writing SB 277 medical exemptions.

Update on the California Medical Board cases against physicians for writing SB 277 medical exemptions.

A lot is going on in this space and I will have some answers and timelines for a few of these cases, so let’s get to it.

Ron Kennedy (not my client or case)

As you know, Ron Kennedy’s license was put on probation with severe conditions a few months ago. I think many, most or all of the medical exemptions he wrote have been revoked because of the sanction order. Initially, he started to appeal the Board’s decision, but last week, the Board disclosed that Ron agreed to a voluntary surrender order, whereby he surrendered his medical license. In the order, he also agreed to terminate all of it in litigation against the Board. Since he no longer has a medical license, the other investigations disappear, which I assumed was the point of the Board continuing to investigate him. I believe he wrote a lot of the state’s medical exemptions, maybe more than anyone else in the state. Therefore, the revocation of all his medical exemptions will stand. Not good news for those families.

Moving on to Ken Stoller’s case

All the paperwork in our appeal (called a writ of administrative mandate) has been filed. The hearing on the writ is set for this Friday, July 23rd. Per previous posts, we should get what is called the “tentative decision” on the afternoon of the 22nd. Judges rarely change their minds once they issue a tentative decision, so that is pretty much it, or will be it. You will recall that the judge initially denied our request for a stay of the Board’s sanction order because the judge didn’t think we would win on the appeal based on the papers we filed. So, we filed stronger papers and now the judge has the entire record of the proceeding below.

I would say the main point of the writ is that SB 277 allowed Ken and the other doctors to do exactly what they did, which is to write medical exemptions broader than the ACIP guidelines. The Board’s position was that every doctor has to follow the guidelines. The judge’s initial position was to try to find a middle ground by saying that what Ken did wrong was that he didn’t even “consult” the guidelines. In our new papers, we pointed out that there is no such thing as “consulting” with the guidelines. They are either followed or they are not followed, and that was the board’s position.

We pointed out to the judge that the strongest and irrefutable proof that doctors did not have to follow the guidelines comes from the testimony of the cosponsors of the bill at the June 9, 2015 assembly health committee. If there is any more clear way to say what Sen. Ben Allen says, then I surely do not know what that is. Here is the setup and the argument we made to the judge in the new set of papers:

” Now that this Court has reviewed the ACIP guidelines and their application under the prior law, it is in a better position to understand the concerns expressed to then Assembly Health Committee Chairman Bonta that under the then-current law people thought it was hard to get a medical exemption. We now know that was because a medical exemption was only available for anaphylaxis or the one or a few other medical conditions listed in the 4.1 table.

1. Co-sponsor Ben Allen’s statement that SB 277 is beyond the ACIP (and Red Book) guidelines and that under the bill physicians did not have to follow them

As indicated above, the members of the Assembly committee were concerned about how hard it was to get a medical exemption under the CDC’s guidelines and they were concerned that California physicians would be forced to follow them and not use their discretion to write exemptions that were not consistent with the guidelines. Member Waldon asked Senator Pan “would you say that SB 277 would still conform to the CDC guidelines regarding a medical exemption? Senator Pan assured the committee that a physician could exercise his professional judgment despite the limitations in the CDC guidelines.” (R 10-page B 647 to page 649 ln. 2).

But after hearing Senator Pan’s answer, member Waldron apparently was still unclear or unconvinced and asked the opposition witness, Barbara Loe Fisher, to respond and she said that “99.99% of children under federal guidelines do not qualify for a medical exemption.” Senator Allen then jumped in and made the following statement: “and I believe you deserve a short answer to your question. No, we would not be in CDC – in compliance with the CDC. The CDC – the committee on immunization practices, the American Academy of Pediatrics would be apoplectic about the loosening of all these guidelines and yet I do like the amendment because if the bill passes at least [there would] still be some discretion. But no, we are way out of compliance with the CDC.” Id. at page B 653 ln. 15 to page B 654 ln. (Emphasis added).”

Ok, so you tell me. Did physicians have to slavishly follow the ACIP guidelines as the Board argued in Ken’s case, or could Ken and other physicians write exemptions based on what the statute expressly refers to as “family history”?

And just to remind you what co-sponsor and pediatrician/family practitioner Senator Richard Pan represented to the same committee, in terms of examples of the kinds of medical exemptions which were authorized under SB 277,

“If the physician feels that there’s a genetic association in a sibling, a cousin, some other relative, it’s not safe for a vaccine, they can provide a medical exemption for that vaccine. There is no limitation on a physician from doing that other than their own professional judgment, their own knowledge, and expertise about what they believe is safe for the patient.”

So, what did the sponsors intend with SB 277? to constrain physicians to write only medical exemptions which comply with ACIP guidelines? I think not, but then, what I think doesn’t matter.

If the judge does change his mind and he could either send the case back for another hearing or throw the case out entirely. Probably under either scenario, the revocations of Ken’s medical exemptions should be reversed. On the other hand, if the court stays with its earlier view, essentially that it cannot interfere or does not want to substitute its own judgment for the Board’s, then obviously the revocations of Ken’s medical exemptions will continue.

The current plan is to appeal if the judge denies the writ, funding permitting. It should take between eight months and 14 or 15 months for an appellate court decision on this case.

Kelly Sutton’s case

Last week, we received the Board’s written closing argument. We have until midish August to put in our responsive closing. Essentially, like above, our case is that the language of SB 277 and the clear statements of the bill’s authors, prove that physicians in California did not have to follow the ASIP guidelines. The board only offered testimony indicating that none of the exemptions complied with these guidelines. They offered no evidence about any other standard of care. Therefore, if we are right, then the Board’s case fails as a matter of proof i.e., the board does not have any. We also had three amazing expert witnesses testify in our case who explained Kelly’s concerns about continuing the vaccine program with these kids could cause them further problems.

The judge will get the case for a decision in early October and has 30 days to send her proposed decision to the board. The Board then reviews the decision most likely at the next Board hearing which is mid to late November. I would expect that a decision in the board would come by the end of November. However, we will get a pretty good indication of where we are in the case, for better or for worse, with the decision in Ken’s writ proceeding, because the issues are essentially the same.

We are still short of funds to cover the legal expenses in Kelly’s case, so if you haven’t contributed and the issue is important to you, please contribute. Here is the link to the funding site.

https://gogetfunding.com/kelly-sutton-mds-legal-defense-fund-to-save-her-medical-exemptions/

Other cases/investigations

I have two other cases involving Northern California doctors. In one case, there is an accusation, but there has not been much movement lately. The other case is before the Superior Court but is still in the investigation stage. The board has requested medical records from a physician for two patients who received medical exemptions. However, the families refused to release their childrens’ records which precipitated the Board filing a special proceeding to force the doctor to turn over the records The hearing, in that case, is at the end of July. We are making essentially the same arguments about SB 277 as we are making in Ken’s and Kelly’s cases. For better or worse, we are going to have two Superior Court judges taking a look at SB 277 and what it means. Alas, we’re in pandemic times, and in pandemics people are afraid, and judges are people. And in these times, judges are going to be fearful of overturning decisions of the public health establishment for what one judge has recently called the “vaccine preferences” of some people. If these cases were before a computer judge program, I would say we have a slam dunk winner. However, with human institutional players like judges, who might not be completely receptive to physicians who advise people that vaccines are unsafe or that their children should not be vaccinated, well, let’s just say that there are contextual/current events challenges.

So there you have it. Fingers crossed.

Rick Jaffe, Esq.