This article about how Dr. Paul Thomas is trying to deter the Oregon Medical Board with a lawsuit 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 vaccination’s social and legal policies. 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 diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
Anti-vaccine Oregon pediatrician Paul Thomas is unhappy that the medical board is – finally – acting against him for misleading parents on vaccines and providing sub-standard care. So he decided to sue the medical board with a lawsuit that, for the most part, is designed to harass. He may have one procedural point, but it’s not likely to justify the rest of his many claims, and board members may turn the tables on him using Oregon’s anti-SLAPP law.
Background on Oregon doctor Paul Thomas
Oregon Dr. Paul Thomas is an anti-vaccine pediatrician, who wrote a book designed to deter parents from vaccinating on schedule, who falsely alleges (again in the complaint) that vaccines cause autism, and who consistently participates in anti-vaccine events and promotes anti-vaccine claims. As a reminder, vaccines do not cause autism. On December 3, 2020, the Oregon Medical Board suspended Dr. Paul Thomas’ license on an emergency basis, finding that his “conduct has breached the standard of care and has placed the health and safety of many of his patients at serious risk of harm.”
There were eight different counts in the allegations against him. On June 3, 2021, Dr. Thomas’ license was reinstated, but with careful limits. Dr. Thomas agreed to “voluntarily limit his practice to acute care; refrain from engaging in consultations or directing clinic staff concerning vaccination protocols questions, issues or recommendations; and refrain from performing any research involving patient care pending the completion of the Board’s investigation into his ability to safely and competently practice medicine.”
On November 21, 2021, the Oregon Medical Board submitted an amended complaint against Paul Thomas “regarding unprofessional or dishonorable conduct; making false or misleading statements regarding the efficacy of the licensee’s treatments; repeated negligence and gross negligence in the practice of medicine; willfully violating any provision of this chapter; knowingly making a false statement or representation on a matter; failing to comply with a Board request; and failing to report an adverse action. “
On June 30, 2022, Dr. Paul Thomas brought a lawsuit against each member of the Oregon Medical Board in their capacity. The complaint is a collection of anti-vaccine tropes, Dr. Thomas’ version of each allegation against him, and a set of legal claims, most of which appear baseless. It reads as a combination of an attempt to signal to supporters that Dr. Thomas is being persecuted and to harass the members of the medical board and intimidate them.
The problem of qualified immunity:
My first question on reading the complaint was how Dr. Thomas – or more specifically his lawyers – intend to overcome qualified immunity. Qualified immunity protects government officials from being sued for damages when they are acting in their official capacity. While qualified immunity can and has been abused, it is exactly designed to prevent people unhappy with an official choice to act against them from targeting the official in retaliation.
Qualified immunity does not mean that an official cannot be sued for damages for violating rights according to congressional law – in theory – but it does mean the right needs to be “clearly established”. Courts have been stingy in finding that a right is “clearly established” in ways that remove qualified immunity. For example, courts found that the police has qualified immunity when they arrested a man for making a parody making fun of the police. The Supreme Court recently upheld the qualified immunity of a border patrol agent who entered a bed and breakfast without a warrant and threw the owner on the ground. This was one of several cases in which the Court sided with officers this year.
Qualified immunity is certainly overused, but if there is a place for it, it is where an unhappy litigant wants to avoid action in a disciplinary hearing where the litigant has procedural rights. Allowing a doctor to sue because a medical board acted against him is in tension with the goal of qualified immunity, as other jurisdictions found. And Dr. Thomas’ complaint did not identify “an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional.” Qualified immunity applies to state officials in Oregon, and should cover the board members even before all the rest. This should mean that the complaint is dead on arrival.
The first part of Dr. Thomas’ complaint is a collection of misleading anti-vaccine tropes. I will not go through all of them, but I will provide three examples.
Dr. Thomas’ complaint alleges that “children who receive the full CDC recommended vaccine schedule are much less healthy than children who do not.”. Dr. Thomas bases this on a study he performed with James Lyons-Weiler, Ph.D., another anti-vaccine activist – in which he concluded that the unvaccinated children in his clinic are healthier.
But this study is deeply flawed in several ways. First, Lyons-Weiler and Thomas made up a new measure with no precedent in the literature – Relative Incidence of Office Visits – a measure that is very likely to inflate issues, and used that to support their claims. The study also applied the metric to a non-random population – Dr. Thomas’ clientele – and the measure is strongly influenced by parents’ perceptions and use of medical services, which are likely to be unrepresentative and not evenly distributed, with anti-vaccine parents potentially making less use of medical services because of their other beliefs.
In short, the study is based on a non-validated measure, done by two people without experience in epidemiology, and influenced by the biases of this very non-random population. It cannot be used to make the claim it does and is in tension with other studies that looked at vaccine risks.
The complaint also alleged a dramatic growth in chronic disease as a result of increased vaccines on the schedule, using a misleading anti-vaccine trope that compared two studies that cannot be compared, and which included obesity as one of the issues in question. This anti-vaccine misrepresentation would imply that vaccines cause obesity, which is, on its face, a strange claim.
Finally, the complaint suggests that Dr. Thomas gives “informed consent” whereas other pediatricians do not. But if Dr. Thomas tells his patients, based on his bad, unreliable study, that unvaccinated children are healthier, Dr. Thomas is misinforming them; the study cannot support that. If Dr. Thomas tells his patients that vaccines cause autism, or that aluminum salts or thimerosal in vaccines are dangerous, Dr. Thomas is misleading his patients. Misleading your patients into not vaccinating does not promote informed consent. It undermines it. By doing so, Dr. Thomas is, indeed, a danger to his patients, a danger to the public, and those patients may infect with preventable diseases, and this supports the Board’s actions.
Paul Thomas’ version of the allegations
I set out the allegations from the Oregon Medical Board against Dr. Paul Thomas previously. I will add Dr. Thomas’ version after each, and then some comments. The allegations are in purple; Dr. Thomas’s responses in red; and my comments in black.
- Publishing his alternative vaccination schedule that “decreases the frequency of many recommended vaccines and omits others,” and using claims that his schedule improves health measures – claims with no evidence, and “fraudulently” claiming that his schedule will prevent or reduce autism. Dr. Thomas allegedly uses these claims to convince parents not to fully vaccinate these children. The order gives an example of a patient who Dr. Thomas attacked for requesting polio and rotavirus vaccines – Dr. Thomas did not carry the vaccines and tried to dissuade the mother from giving them to her child. It got to the point that Dr. Thomas asked her “how awful she would feel if [her child] got autism and she could have prevented it.” Reminder – vaccines do not cause autism.
Dr. Thomas alleged that his findings were valid. About the patient, Dr. Thomas berated, Dr. Thomas denies the allegations by the board and said it never happened. He also said that a 2013 encounter is not an emergency in 2020.
Dr. Thomas may disagree with the Board’s assessment of his study, but that does not make the Board’s decision incorrect. Dr. Thomas has the ability, during the hearing, to challenge the Board’s conclusion, but by itself, the Board’s conclusion that Dr. Thomas’ promotion of non-vaccinating – is supported both by his claims based on his study and the description of the events in which he tried to deter a mother from vaccinating – can harm his patients and the public health. Dr. Thomas can deny the events, but the Board can act based on the testimony described and the published article. The events described here suggest Dr. Thomas actively works to deter parents from vaccinating – and the article likely reinforces that; in fact, the complaint’s allegation that the vaccine schedule is unhealthy support the board’s conclusions that Dr. Thomas likely still thinks that and says this.
Further, despite Dr. Thomas’ efforts to allege that he is being persecuted for giving informed consent, the events described with this patient suggest the opposite. Trying to deter a parent from vaccinating according to the recommended schedule is the opposite of informed consent. It’s misleading the parent away from the standard of care. And trying to tell the parent she would be causing her child autism in these circumstances is not just false, it’s abusive. This example suggests Dr. Thomas actively undermines informed consent about vaccines, putting his patients and the public at risk.
- An 11-year-old child that Dr. Paul Thomas recommended to receive a delayed schedule got pertussis (whooping cough), which he was not vaccinated against. According to the Oregon Medical Board, the child was “immunized on a delayed schedule according to Licensee’s recommendation and practice agreements.”
Dr. Thomas alleges that this child was “diagnosed with pertussis in September 2018 and was successfully treated with office visits and antibiotics. The Board’s allegations failed to set forth specific reasons why Dr. Thomas’ alleged conduct constituted an immediate danger to the public. … The Board’s allegations concerning Patient B make it sound like parents in Dr. Thomas’ practice have to commit to accepting a delayed vaccination schedule. This impression created by the Board’s description is false. Dr. Thomas provides parents with facts—it is their choice how they want to vaccinate their children”.
Suppose Dr. Thomas recommended the child delays immunization. In that case, Dr. Thomas was deviating from the standard of care, putting his patient and the public at risk – and the patient paid the price, getting pertussis. This supports the suspension. The parents may have agreed, but he bears responsibility if Dr. Thomas recommended not vaccinating. And if he continues to do so, that’s worse.
- The decision describes a now 7-years-old child, the sibling of the 11-year-old above, who had a fever for three days when he was 10 weeks old. Dr. Thomas did not send him to the emergency room or hospital for definitive lab testing. The child ended up being hospitalized and diagnosed with Kawasaki’s disease. The child also later got pertussis.
Dr. Thomas alleged that “when Patient C was admitted to the hospital, the treating physician said that they did not know whether Patient C had Kawasaki Disease. … Patient C was appropriately treated promptly by Dr. Thomas. Patient C’s parents are completely happy with the treatment that their son received from Dr. Thomas. Patient C is also not vaccinated, a choice made by his parents and properly documented by Dr. Thomas.”
It’s not clear how this is a counter. Dr. Thomas’ response seems to agree that the child was not sent to the hospital by him, that the child was later diagnosed with Kawasaki’s disease, and does not counter that the child later got pertussis. There is also nothing here to suggest that non-vaccination – for either child – was not recommended by Dr. Thomas.
- An unvaccinated child, who is now nine, had tetanus when he was six, ending with a two months stay in ICU. After release, follow-up notes “documented a referral to a homeopath, recommendation of fish oil supplements, and “phosphatidyl seine.” There is no indication that Dr. Thomas discussed vaccinating the child against tetanus with his parents. People may remember this case – it got some media coverage and was reported on by CDC in the MMWR.
Dr. Thomas alleged that Patient D was not Dr. Thomas’ patient before the injury. The Board’s deceptive description was designed to intentionally create a false impression. Patient D was not seen by Dr. Thomas until after Patient D was discharged from the hospital. Omitting this critical fact amounts to fraudulent misrepresentation to the Board. Also not disclosed by the Board is the reason that Dr. Thomas saw Patient D because other doctors would not accept Patient D because his parents adamantly refused to vaccinate him. During Patient D’s first visit with Dr. Thomas in 2017, the parents made it clear to Dr. Thomas that they would refuse all vaccinations. There was no basis for any discipline of Dr. Thomas related to Patient D.
Dr. Thomas’ response does not answer the Board’s allegations. The allegations were that the child was recommended to be treated with homeopathy and fish oil while not discussing the tetanus vaccine. The parents may have been anti-vaccine, but not discussing vaccinating with a child that already got tetanus is problematic. The child deserved better.
- A now 10-year-old girl was hospitalized for rotavirus, and after a severe cough was treated for pertussis, too, though no lab testing was done.
Dr. Thomas alleged that “Patent [sic] E became hospitalized with rotavirus gastroenteritis, that the Board contends could have been preventable by vaccination. But, the refusal by the parents of Patient E to vaccinate their daughter was documented by Dr. Thomas. The Board’s conclusion that Dr. Thomas breached the standard of care for Patient E boils down to an indictment against Dr. Thomas because he respected the parents’ right to informed consent.”
This seems to avoid the question of what Dr. Thomas recommended to the parents. If – as with Patient A – Dr. Thomas actively discouraged the parents from getting the rotavirus vaccine, or even did not counsel is, Dr. Thomas did not do his duty to the child. If he generally recommended delaying vaccine, it is the same.
- A 7-year-old was not vaccinated, but followed for “constipation, food allergies, mold allergies, and possible “chronic Lyme disease”.” Dr. Thomas did not recommend vaccination, but treated her this way:
[Dr. Thomas] ordered repeated IgE allergy panels and recommended elimination diets, vitamin supplements and provided antibiotics for acute infections. Licensee failed to provide an appropriate referral to a pediatric gastroenterologist to exclude a diagnosis of malabsorption or celiac disease, a referral to pediatric allergy/immunology or to pediatric nutrition.
Dr. Thomas alleged that “none of those ailments are targeted by any childhood vaccine,” and that mentioning the child’s non-vaccination was a “non sequitur”. … Dr. Thomas’ treatment of Patient F considered things that most other doctors do not believe because they do not keep up with the science. Far from being negligent, Dr. Thomas’ treatment of Patient F was exemplary.
Dr. Thomas did not respond to the allegation that he did not refer the child to appropriate experts for testing. Although vaccination would not prevent allergies, this description suggests sub-standard treatment, reinforcing the impression of a doctor that does not act in his patients’ interests, and whose patients are at risk under his care. Dr. Thomas may believe in alternative treatments and think he does not need to refer children to experts, but the board can conclude that not referring children to actual experts is a problem.
- Two twins under his care were hospitalized with rotavirus suffering from “severe dehydration and serum electrolyte abnormalities.” The mother stated she thought her children had received rotavirus vaccines. The records do mention parental refusal of vaccines, but “are inconsistent regarding specific vaccines and their timing.”
Dr. Thomas alleged that “the parents made their own decision not to vaccinate their children. The Board’s allegations are false.”
Here, the Board appears to have an allegation from the mother who believed that her children did get the vaccines. Maybe Dr. Thomas can prove that he told the mother the children were not getting the vaccines; but this kind of factual dispute is appropriate for the hearing, and by itself, misleading parents by falsely telling them their children were vaccinated would be an indication of a doctor that puts his patients – and the public – at risk.
So far, Dr. Thomas denies the Board’s allegations, but there is enough in there for the Board to conclude that Dr. Thomas acts in ways that put children in his clinic, and the public at large, at risk. The compilation of cases – even if Dr. Thomas can disprove some of the allegations – suggests a doctor that actively deters parents from vaccinating, that had multiple children sick, some severely, with preventable diseases after not vaccinating them, and a doctor that – as the complaint demonstrates – openly believes vaccines are bad and would deter parents from using them. This would support emergency suspension. The last allegation would likely support it all by itself, though, and Dr. Thomas essentially admitted it.
- Ordering MMR titers for 905 children under his care after a single dose of MMR. The order said: “Except for rare cases of suspected immune deficiency, there is no clinical indication for assessment of antibody titers. The ordering of unnecessary testing is a violation of ORS 677.190(1)(a) unprofessional or dishonorable conduct, as defined in ORS 677.188(4)(c) willful and repeated ordering or performance of unnecessary laboratory tests.” In addition, out of patients who did not have a strong response to the mumps vaccine, 90 (out of 122) did not receive the second dose.
Dr. Thomas alleged that “about 90 to 95% of children do not need a second dose of the MMR vaccine. It is therefore prudent to test for immunity before administering a second MMR shot that most kids do not need. Indeed, testing is the only ethical thing for a doctor to do because there are risks to vaccination and it is unprofessional to provide unnecessary treatment.”
This is not in line with expert recommendations. The recommended schedule supports giving children a second MMR at the age of 4-6. Dr. Thomas may disagree, and although there are actual, real risks to not giving the second MMR even to a child who responded to the first dose – specifically, while immunity from measles and rubella is usually long-term immunity from mumps wanes faster, and the lack of a second dose could lead to mumps at an age that a teen is at risk of several complications — those risks are likely small enough that for children that are immune against measles and rubella, the chances of a child being harmed by Dr. Thomas’ deviation from the standard of care are low.
The same is not true for children who did not respond to the first dose. And as mentioned, about 90 children had not, in Dr. Thomas’ science experiment on his patients.
On this, Dr. Thomas said: “Of the 905 patients, 90 had low immunity response and did not get a second dose of the MMR vaccine. The Board bizarrely found Dr. Thomas responsible for not ensuring these 90 patients were given the second MMR dose. The Board’s finding is in direct contravention of the law. It is not Dr. Thomas’ job to ensure that these patients get a second MMR dose. That is the opposite of Dr. Thomas’ job under Oregon law. Dr. Thomas’ job is to give information to parents so that they make an informed choice. These children do not belong to Dr. Thomas and they do not belong to the Board. “
This is beyond disingenuous. In contravention of recommendations, Dr. Thomas gave children a titer test instead of a second MMR. If that’s his choice, yes, it is his responsibility to make sure that the children who are not immune – ideally, all children, but certainly those not immune – receive the second dose, or at least, document that he made an effort to persuade their parents to get it, and at the very minimum that he recommend that they do.
Discouraging getting the second dose as a matter of course and then shirking responsibility for leaving over 90 children in his practice at unnecessary – and known – the risk of measles is directly putting the children under his care and the public at large at risk. This alone would likely justify the emergency suspension of Dr. Thomas’ license.
In short, Dr. Thomas’ response to the allegations is not likely to be a good argument against the suspension. In my view, he has no case on this. The Board had plenty of justification to suspend his license. But even if some of his denials are true, he has the option to present that evidence in a procedure before the board. Bringing a lawsuit for a large amount instead reads like the intimidation tactic of someone who knows he cannot win on the merits.
The legal claims
Dr. Paul Thomas’ first claim is that the Oregon Medical Board’s actions violated his freedom of speech. But the allegations against him include multiple actions and practices. This is unlikely to go very far.
Dr. Thomas’ strongest allegation is likely a procedural violation by the Board. Specifically, Dr. Thomas alleges that:
Pursuant to ORS 677.205(3), ‘the board may temporarily suspend a license without a hearing, simultaneously with the commencement of proceedings under ORS 677.200 if the board finds that evidence in its possession indicates that a continuation in practice of the licensee constitutes an immediate danger to the public.
But the Board violated ORS 677.205(3) by issuing an emergency suspension without simultaneously commencing proceedings. The Board did not issue a notice of proposed disciplinary action or other form of written complaint as required under ORS 677.200 until April 22, 2021, nearly five months after the emergency suspension order.
Dr. Thomas may have a statutory claim here – depending on what “simultaneously commencing proceedings” means, and what the board was doing at the time. I am not sure Dr. Thomas is right, because the suspension involved setting out the allegation, and negotiations and procedures were going on in the meantime. But even if he does, this procedural violation may have justified overturning the suspension before April 22, 2021, but is unlikely to support a violation of due process over a year later, with a lot of procedures happening in between, or monetary damages.
Some of the other claims appear even weaker. Under the heading of “negligence”, Dr. Thomas essentially alleges that the report written by the Board’s investigation against him had false allegations. That’s not negligence; that’s an intentional misrepresentation, but that aside, these are the kind of claims Dr. Thomas can raise in the disciplinary proceeding that is still ongoing. The complaint did not set out the elements of a negligence claim, or a misrepresentation claim, in this context. This may sound like a technicality, but in a tort claim like this, it is the responsibility of the plaintiff to make a case for the torts he is claiming – and this complaint did not.
Finally, the complaint includes a defamation claim that appears tacked on. This claim is likely to be the weakest. In my reading, procedures before the Board would be a quasi-judicial proceeding for which, under Oregon law, there is an absolute privilege against a defamation claim. This is the case for claims to the state bar, and the same logic would apply here.
In my reading, this claim is a SLAPP – strategic lawsuit against public participation. Dr. Paul Thomas is suing the Oregon Medical Board members personally to try to scare them from proceeding against him. One problem for Dr. Thomas is that Oregon has a strong anti-SLAPP law, which can apply to protect “statements made before a legislative, executive, or judicial proceeding;” or “statements made in connection with an issue under consideration by a government body.”
Board members can use this law not just to dismiss Dr. Thomas’ complaint, which must be dismissed unless he can “introduce substantial evidence of a probability of prevailing on the claim”, but also to “impose reasonable attorney’s fees and costs on the plaintiff. § 31.152(3).”
Dr. Thomas is understandably unhappy that the Board suspended his license. He also appears very committed to his anti-vaccine views, and to standing behind deterring and scaring his patients off vaccinating their children. Ironically, it’s his commitment to his anti-vaccine ideology that justifies the Board’s actions.
Dr. Thomas brought a lawsuit to try and scare board members from acting against him. Hopefully, Oregon’s courts can see through it, and use one of the tools available to them – qualified immunity or the anti-SLAPP statute – to remove the thread and allow the medical board to do its job and evaluate the claims against Dr. Thomas.
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