Corralling the Herd: California Medical Board Acts Against Anti-Vax Doc

This summer, California’s strict new childhood immunization law, barring all exemptions except those needed for medical purposes, went into effect for public and private schools, preschools, and day cares. This law was passed as a response to the highly-publicized 2014-2015 multi-state measles outbreak that originated at Disneyland, and also in response to the growing number of California communities with large clusters of families exempting their children from vaccine requirements, putting at risk community protection from vaccine-preventable illnesses.

As I’ve written about before, both here and in articles with Tony Yang, there are many different ways to structure childhood vaccination laws. While much of the attention goes to whether or not states offer parents the right to exempt their children based on religious and/or philosophical grounds — see, for example, the recent American Academy of Pediatrics report supporting mandated vaccination for school and daycare attendance —  there are many other implementation-related details in the laws that can increase or decrease the law’s efficacy at maintaining high vaccination coverage rates. For example, some states may require that exemption requests be filed annually (increases efficacy), some states require only that a form be correctly completed (decreases efficacy), some states allow for historically anti-vax practitioners, such as naturopaths, to complete medical exemption forms (decreases efficacy, and creates a new, permanent loophole for gaining exemptions), some states require that medical exemptions be reviewed and approved by a state public health officer (increases efficacy).

Many parents seeking exemptions today are doing so for different (but equally wrong) reasons than parents used in the late 90s-early 2000s, with an increasing number believing that vaccinations are an imposition of discomfort on their children, and are no longer the public health necessity they once were. These parents are strong advocates and savvy in their pursuit of exemption requests, and increasingly the challenge of developing sound public health policies is in implementing a system that can anticipate and close (or minimize the use of) the new loopholes.

As California has eliminated all exemptions except for those for medical reasons, attention now turns to the loopholes that remain in the use of the medical exemption process. It turns out that, under the California law, pediatricians could — and a few would — write medical exemptions based on specious medical grounds, and, unlike in West Virginia, there was nothing in the law that authorized the state health department to reject those requests.

This week, the California Medical Board decided to join the public health effort to protect California’s herd immunity, bringing disciplinary action against Orange County pediatrician Dr. Bob Sears, one of the nation’s highest profile vaccination skeptic doctors. According to the complaint, in 2014, Sears committed gross negligence in his medical practice by failing to follow an evidence-based approach to collecting information for and completing the medical exemption request process. This action signals a watershed moment in vaccination law and policy. While state boards have taken action against physicians for such acts as fake autism cures, they generally have not weighed in on how individual physicians undertake their decision making process associated with vaccine exemption requests.

For me, as a researcher, this is a “worlds colliding” moment, as I began my academic career writing about the law of medical licensure boards. I expect Sears to challenge the claim that his conduct rises to the level of gross negligence (the higher standard that must be met for action against a medical license, as opposed to medical malpractice).

UPDATE: Looking at the complaint by the California Medical Board, it appears the action was undertaken by the Executive Director of the medical board, not based on a complaint filed by a patient, hospital, or a malpractice lawsuit. I also am interested to see how many other state medical boards might see monitoring use of vaccination exemptions as a new way to fulfill their public protection mission.

Ross D. Silverman

Professor of Health Policy and Management, Indiana University Richard M. Fairbanks School of Public Health and Professor of Law, Indiana University Robert H. McKinney School of Law in Indianapolis, IN.

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