In late July, the Medical Board of California filed charges against Dr. Ken Stoller for writing eleven vaccine medical exemptions not within the CDC’s ACIP guidelines.
The hearing is scheduled for mid-March 2020 and will last about a week. The central issue in the case is whether California physicians had the authority to write medical exemptions beyond the ACIP/AAP Pediatric Redbook guidelines. Dr. Stoller, like many physicians, followed the evolution of SB 277 very closely and was heartened by the legislative statements by Senator Pan and others that seemingly explicitly gave physicians that right, even allowing physicians to base an exemption on family history from a cousin (Senator Pan’s example). A central issue to the case is whether the medical board has the authority to reinterpret SB 277, given that physicians were explicitly given broad discretion to write exemptions based on their medical judgement. It is important that Dr. Stoller and other doctors defend this principle to prevent schools from refusing to honor exemptions that are currently valid.
The administrative/appeals process
Evidence in the case will be heard by an administrative law judge in the Oakland office of the Office of Administrative Hearings. Sometime after the hearing, the judge will issue a proposed decision including a proposed sanction, if the Board establishes a medical board violation. The Board has set out disciplinary guidelines which establish the range of sanctions for various violations. The way the charges are filed, the minimum sanction is probation (technically, revocation stayed pending a probation period) and the maximum sanction is license revocation.
(You might recall that a prominent SoCal physician entered into an agreed order for probation for 35 months for one case which had an excusal from vaccination letter, among other charges).
The proposed decision then gets reviewed by the members of the Medical Board. The Board has a great deal of flexibility to accept, reject or change the proposed decision and the same applies to the sanction.
If the doctor doesn’t like the result, he/she can file an appeal (administrative writ) in the superior court. Like in all appeals, the superior court in an administrate writ case reviews a Medical Board decision does not make a de novo or new decision, meaning the court does not make an independent judgment of the facts and evidence or substitutes its judgement for the Medical Board’s judgement. Rather, courts give deference to the Medical Board “special expertise” in deciding these cases and looks for abuse of discretion or clear legal errors. So, for example, you can’t win an appeal by arguing that my expert was more credible than the Board’s. Courts in administrative writ appeals do give some deference to an administrative agency’s interpretation of the laws it enforces.However, courts are much more comfortable overturning an administrative agency’s interpretation of a statute than weighing the evidence or making witness credibility determinations.
That is important because as previously stated, in this case a central issue is the meaning and interpretation of SB 277, and specifically, whether SB 277 permits Dr Stoller and other physicians to write medical exemptions that do not comport with the ACIP/Redbook contraindications standards and/or whether there is another standard of care for vaccines under the board’s complementary and alternative medicine law (Bus & Prof Code 2234.1). As many of you know, we tried to have the civil courts rule on these legal issues, but the San Francisco Superior court dismissed our civil lawsuit and said we would have to litigate these issues in the administrative case. And so here we are.
What’s at stake in this case
Most medical board cases only have an effect on the physician who is the subject of the proceeding. But it is different in a case involving vaccines and that is because SB 276/714 provides that medical exemptions written by physicians who have been disciplined for exemption writing will be revoked.
Recently, Senator Pan stated that the exemptions of a popular SoCal pediatrician currently under probation will be revoked. The children who received a medical exemption from Dr. Stoller will share the same fate, if his license is disciplined in this case, and he does not appeal and receive a stay of enforcement from the courts pending appeal.
As the appeals process could take several to many years, many/most/all of Dr. Stoller’s exemptees might be able to continue in school, vaccine exempt through their current grade span, so long as the appeals process continues and there is a stay of enforcement. Thus, funding Dr. Stoller’s case before the Medical Board is important to the broader community of the vaccine concerned.
Request for Funding of this Case
As many of you know, the day after the San Francisco City Attorney served a subpoena on him for his medical records of his medically vaccine exempt patients, Dr. Stoller’s employment at the clinic where he worked was terminated. Because he is currently the subject of a medical disciplinary action, his ability to obtain employment in medicine is severely curtailed. The financial generosity of the community was instrumental in the victory against the San Francisco City Attorney protecting the medical records of Dr. Stoller’s patients.
We are reaching out to you again for support as Dr. Stoller needs help paying for the defense of this Medical Board administrative action and the possible multi-year appeals process which may be necessary to have courts make a legal determination about SB 277 and protect his patients’ medical exemptions as long as possible. But fighting the Medical Board requires a new round of financial support to pursue what could be a prolonged legal defense.
The alternative choice would be to seek a settlement with the Medical Board prior to the hearing. However, since the minimum settlement term is probation, the exemption of all of his patients would be revoked. Dr, Stoller has expressed a willingness to put his own license on the line to continue the fight, but he needs your support to do so.
So please consider making a donation.
Rick Jaffe, Esq.