On Friday February 7^th we had the required settlement conference before a settlement judge followed by a pre-hearing conference. Because this is a public post involving an ongoing litigation, for mostly obvious reasons, there is much I cannot share, especially in terms of strategy and tactics without potentially harming the case. Sorry, but that’s the way it is.

What I can report is that the case did not settle. The Board was looking for settlement terms which would lead to the revocation of all of Ken’s previously written medical exemptions. Ken was not prepared to do accept that. To resolve the case, we proposed a resolution which did not jeopardize the medical exemptions, but that was rejected by the board. In fairness and in context, cases which settle which involve alleged serious misconduct like in this case, usually involve stayed revocation/probation, which would lead to medical exemption revocation. So, I cannot conclude with certainty that the Board specifically wants all of Ken’s medical exemptions revoked, but that is the way it feels to me, and that it wants to send a strong message to every physician who has written a broad ME.

After the settlement conference, we had the pre-hearing conference before a different judge, and this judge will be the judge hearing the case. The judge hearing the case is smart, deliberate and reasonable, which is an impression I do not always get from administrative law judges in my past experience working around the country. She also has a background in genetics and I was happy to hear that, since a requisite part of all of Ken’s exemptions is consideration of genetic information.

The pre-hearing conference mostly sets deadlines. We also had discussions about possible media. Board cases deal with medical issues of patients which involves privacy and confidentiality issues. So, while some media will be allowed in for some parts of the case, other parts might not have media access. I did bring up the issue of live streaming the proceedings. Both the DAG and the judge had some concerns about the effect of live broadcasting might have on the witnesses. But no order has been entered and the there were just preliminary discussions. Also, the largest room has only between 20 and 30 seats for spectators.

The Main Issue in the Case

The Board’s view is that the standard of care for writing vaccine medical exemptions under California law is to look to the national guidelines, namely the CDC’s ACIP as evidenced in the Red Book, period. Whatever conditions qualify for an exemption from a particular vaccine in these guidelines is all there is under the standard of care. The Board also views that the standard of care requires a physician to have prior medical records, if the exemption writing physician is not the child’s PCP.The Board thinks the standard of care was not changed or impacted SB 277.

Our view is of course different: SB 277 gave Ken and other like-minded physicians the legal authority to write medical exemptions much broader than the ACIP and Red Book guidelines. Or, at the very least, the law appeared to do so on its face and certainly when Senators Pan and Allen’s statements to the legislature are considered. We think that all eleven ME’s in this were consistent with the SB 277 law on ME’s, and also consistent with the ability of complementary and alternative health care provides to provide medical advice different from that given by mainstream physicians under Bus. & Prof. Code 2234.1. We also do not believe that obtaining medical records from past treating physicians is usually necessary for issuing a ME.

The way this works is that the Administrative Law Judge, who is an employee of the Office of Administrative Hearings, makes a proposal for a decision including findings of fact, conclusions of law and a disciplinary recommendation (which is almost always within the published medical Board’s disciplinary guidelines).

The actual members of the medical board then all get a copy of the decision and decide whether to accept, reject or modify the ALJ’s proposed decision. The Board can basically do what it wants.

The Board’s decision can be appealed to the Superior Court, then appealed to the Court of Appeals. There is no automatic right to appeal this kind of case to the California Supreme Court.

Because a central issue involves the interpretation of a statute, and because a medical exemption is a statutory creation, I think the ultimate decider of this case will be the Court of Appeals, if that’s what it takes. and possibly the California Supreme Court.

We are still working though some important issues, including one which I know is close to your hearts and minds. For now, all I will say is that it’s under consideration, but in litigation things and plans change and new developments occur, and not all considerations and decisions in a case can be vetted or discussed on the internet.

More as things develop.

Rick Jaffe, Esq.