This article about Dr. Kenneth P Stoller and his attempt to block the revocation of his California license was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On March 17, 2021, a California superior court judge rejected a request from Dr. Kenneth P Stoller to stay the Medical Board of California’s decision to revoke his license for writing fake medical exemptions (the judge issued a corrected decision on March 19, but the essence was the same).
The curious case of Dr. Kenneth P Stoller
To remind readers, on February 16, 2021, the Medical Board of California revoked Dr. Kenneth P Stoller’s license for writing ten baseless medical exemptions from school immunization requirements, two of which were temporary, and eight permanent. Dr. Stoller based the fake exemptions on genetic testing that is not, under prevailing science, relevant to vaccinations, and on medical history statements that he did not investigate.
The revocation was to become operational on March 18, 2021. So Dr. Stoller filed a court case asking for an emergency stay of the revocation until full litigation.
The Court decision on the stay explains:
Dr. Stoller was not the treating physician of any of these children. He did not communicate directly with any treating physicians before writing the exemption letters, and he did not review the children’s medical records in advance. Instead, he accepted medical histories that parents provided, but he failed to investigate the accuracy of the reporting. In most cases, he also predicated exemptions on genetic testing performed by the 23andME commercial service, which he then analyzed.
The Board found that Dr. Stoller did not examine the best practices guidelines of the Advisory Committee on Immunization Practices (ACIP) or the guidance by the American Academy of Pediatrics. An expert with considerable experience in pediatric infectious diseases testified that Dr. Kenneth P Stoller was deviating from the standard of care. The Board then revoked Dr. Stoller’s medical license.
The standard for staying revocation of the Medical Board requires those requesting a stay to meet a high bar. The relevant legal provision states that a “stay shall not be imposed or continued unless the court is satisfied that the public interest will not suffer and that the licensed hospital or agency is unlikely to prevail ultimately on the merits.”
The Court was, in its words (using that favorite tool of law, the double negative), “not satisfied that the board is unlikely to prevail on the merits”.
Dr. Stoller argued that the law allowed him to write an exemption “without reference to prevailing standards within the medical community” because the statute allowed broader reasons for an exemption. Dr. Stoller quoted a legislator who supported the bill in support.
However, as a matter of interpretation, courts generally do not use the opinion of an individual legislator to construe the meaning of a statute passed by the whole legislature, since it’s not clear that statement will reflect the intent of the entire legislature unless there’s an indication that the legislature agreed, or unless it’s just a description of events leading to passage.
In this case, the legislator’s testimony was not provided to the court, and there was no evidence the legislature as a whole saw things this way. In fact, says the court, there is evidence in the legislative history that the standard of care as part of the clause – the clause conditions exemptions “upon a professional judgment that vaccination is ‘unsafe.’ The notion that the Legislature intended to authorize physicians to determine safety without reference to prevailing professional standards is problematic.” Even opponents wanted physicians to use their “best professional judgment”.
I think the judge is completely right: professional judgment requires drawing on professional norms. Doctors do not get to make up medicine. They’re licensed – and subject to professional discipline – exactly because practicing without professional norms can harm people, and Dr. Kenneth P Stoller did not make a case for throwing that out.
The judge also disagreed with Dr. Stoller’s claim that the Board revoked his license only for going beyond ACIP guidelines, pointing out that the Board acknowledged that deviations from guidelines may be appropriate, but Dr. Stoller did not even consider the guidelines and based the exemptions “on a genetics-based approach without accepted scientific foundation.”
Dr. Stoller also challenged the Board’s determination that he did not qualify for the protection of the section of law saying that a doctor “shall not be subject to discipline … solely on the basis [of using] alternative or complementary medicine” (§2234.1of the Business and Professions Code of California) because the Board found that he did not meet the terms of the clause. Specifically, he did not “perform good-faith examinations” of the children, and the risks of the exemptions outweighed the benefits.
The court agreed with the Board that Dr. Stoller’s actions were not “in good faith”. The court found that:
Dr. Stoller has not practiced as a pediatrician for many years, is not an expert in infectious diseases, and has not served as any of the children’s treating-physician. The children’s parents nonetheless sought him out for the purpose of obtaining exemptions from vaccination, in some cases against the recommendations of their regular physicians. It appears that Dr. Stoller uncritically accepted these parents’ uncorroborated reports.
The Court also pointed out that Dr. Stoller rejects the evidence on vaccines’ benefits and believes with no evidence that doubts should be resolved against vaccination. This means that “the Board is likely to prevail in a dispute over Dr. Stoller’s ‘good faith’ in examining the children before exempting them.
In other words, the court agreed with the Board that Dr. Stoller, willing to sell medical exemptions to children he is not regularly treating, in spite of not practicing pediatrics or infectious disease, and with express anti-vaccine views, can reasonably be found not to be examined in good faith the children he exempted.
Dr. Stoller also tried to analogize to a provision in the code allowing doctors dispensing “dangerous drugs” not to have an in-person examination, but the Court pointed out that there are real differences between the two – for example, the other section expressly says it does not require “synchronous interaction”, and does not require “good faith”, but does require complying with the “appropriate standard of care.” Further, dispensing dangerous drugs is different from giving children medical exemptions from school vaccines.
Further, vaccines provide benefits both to patients and the public, and Dr. Stoller provided no real evidence that his “therapeutic method” – giving the exemptions – has potential for gain that outweighs the risks, which is a precondition for using an alternative treatment. In other words, Dr. Stoller did not show that allowing these children to go to school unprotected against vaccines preventable diseases, creating a risk for them and others, has therapeutic benefits, and not just risks to the children and others. The court pointed out that the fact that the children were not yet harmed does not negate the real risk of potential harm to them and the public.
Dr. Stoller tried to compare his case to other doctors writing exemptions whose licenses were not revoked, but the court found that the Board’s choice to revoke his license was not an abuse of discretion. The court points out that two of these doctors – who settled before the hearing – had, in their charges, fewer children exempted, and were not found to have committed “extreme” departures from the standard.
I would say the Board probably did err, but not in Dr. Stoller’s case, but in settling the others. That said, settlements are often less severe than penalties imposed without one. The court points out that people can disagree on the penalty for Dr. Stoller, but that means that the Board’s decision stands: where reasonable minds can disagree, administrative discretion is not overturned.
The court found that the Board is likely to succeed on the merits of the challenge to Dr. Stoller. The decision makes it clear that the court did not find much merit to Dr. Stoller’s claims and does think, at this point, that Dr. Kenneth P Stoller deviated from the standard of care, wrote baseless exemptions, and acted on the basis of anti-vaccine views with no scientific evidence behind them.
Although this is an interim decision, and the judge will consider additional points by Dr. Stoller, this decision means that, at this point, Dr. Stoller’s license remains revoked, and that he has an uphill battle if he hopes to convince the judge to change that.
I will add that in a case like this, where the questions are likely about the application of the laws to the fact, rather than purely legal questions, an appeal will also be an uphill battle. There may be questions appellate courts will address about the scope of the alternative medicine exception, but Dr. Stoller is not coming in with very strong facts to support a favorable result.