Dr. Ron Kennedy loses appeal against providing records to medical board for vaccine exemptions

On 14 June 2019, a California Court of Appeals issued a decision (pdf) that means, in essence, that Dr. Ron Kennedy (see Note 1) has to provide the Medical Board of California with medical records of three patients for whom he wrote vaccine medical exemptions. This is part of an ongoing saga around Dr. Kennedy’s exemption writing.

Ron Kennedy is a licensed MD who owns a clinic called the Anti-Aging Clinic in Santa Rosa, CA,  which offers, apparently, anti-aging treatments. The Yelp reviews for the clinic suggest he has a long history of filling medical marijuana prescriptions. 

I am going to review Dr. Ron Kennedy’s background and the case in this article.

Ron Kennedy
Photo by Rezaul Karim on Unsplash.

About Dr. Ron Kennedy

Dr. Kennedy is neither a pediatrician nor family doctor, which makes his involvement in providing medical exemptions from school immunization requirements strange. While California law allows any licensed MD or DO (licensed in the state) to provide medical exemptions, the natural address for such exemptions when there’s a valid medical reason would be the child’s treating physician – whether a pediatrician or a family doctor.

It’s easy to wonder whether Dr. Kennedy’s involvement is because of his willingness to grant such exemptions when treating physicians will not. In a video he created around a lawsuit he himself brought Dr. Kennedy claims that it’s because other doctors are scared of “exercising their medical judgment” in this area out of fear that the medical board will go after them. 

But there are no grounds or reasons for the Medical Board of California to go after a clearly justified exemption. I suspect that when the board actually goes forward on a case, it is because there are no legitimate reasons for the exemption.

The case against Dr. Ron Kennedy

Dr. Ron Kennedy was served with subpoenas for files related to three exemptions he provided. In addition, the Medical Board of California not only subpoenaed the records of the children from the schools but also subpoenaed the medical records of all children who received medical exemptions from Dr. Kennedy for students in the Mendocino School District.

According to the tentative ruling on the case against him, these “have already been complied with.” Dr. Ron Kennedy brought a lawsuit against the subpoenas against the schools, and engaged in fundraising on anti-vaccine sites for that lawsuit, claiming to be fighting generally for the rights of doctors to provide medical exemptions.

Several sites shared this appeal, although the personal nature of the fight is pretty clear. I have heard that Dr. Kennedy lost that lawsuit and is appealing, but this post is not focused on that decision. It is focused on the direct subpoena for the medical records from Dr. Kennedy himself.

In April 2019, Judge Schulman from the Superior Court of Sacramento granted the state’s request, stating that (pdf):

[u]pon weighing the patients’ right to privacy versus the state’s interest in safeguarding its citizens from unvaccinated children and negligent medical care, petitioner has demonstrated good cause for the issuance of the subpoenas, which are relevant and material to its investigation of whether Dr. Kennedy is improperly issuing blanket medical exemptions from vaccinations in violation of the standard of care.

Dr. Kennedy, naturally, appealed, and that appeal is ongoing. But he also asked to stay the decision until the appeal is completed, and that request is what the Court of Appeals rejected (pdf) on June 14, 2019, basically deciding that he has to hand in the files while the appeal is still being heard.

In part, the basis of the decision is very procedural – the court of appeal found that section 917.2 of the California Code of Civil Procedure, which automatically stays procedures to deliver documents or property when there’s an appeal of a regular civil action. Because procedures to enforce administrative subpoena are “special proceedings” – a separate category – the automatic stay provisions do not apply. The court also points to a policy reason –

…an automatic stay would impede the Board’s discharge of its duty to “protect the public against incompetent, impaired, or negligent
physicians. (Arnett v. Dal Cielo(1996)14Cal.4th4, 7, 56 Cal.Rptr.2d 706, 923 P.2d 1.) The Legislature has “broadly” vested the Board with authority to investigate complaints against physicians. (Id. at pp. 7–8, 56 Cal.Rptr.2d 706, 923 P.2d 1.) The power to investigate would be hamstrung if a physician could force the Board to bring a court action to enforce a subpoena, then obtain an automatic stay of an adverse order pending a subsequent appeal. 

Basically, automatic stays would slow down the medical board’s investigation even more than the usual press of business slows them down, and they already last years.

Litigants like Dr. Kennedy can ask for a discretionary stay if he shows that “his appeal raises substantial questions, and that disclosure of the records will cause irreparable harm,” but the court found that Dr. Kennedy did not make such a case here.

Therefore, Dr. Kennedy had to provide the board with the required documents. The court of appeal pointed out that this does not seriously harm patients’ privacy, because “the Board must keep the records confidential during its investigation.”

And so the California Medical Board’s case against Dr. Kennedy continues, with the medical records now available to the board.

Kennedy tentative ruling

Kennedy v Superior Court for City and County of San Francisco

Notes

  1. As far as we know, Dr. Ron Kennedy is not closely related to the noted anti-vaccine zealot, Robert F. Kennedy, Jr

This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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 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.