Monday, June 17, 2019
Court of Appeal:
Panel Denies Writ of Supersedeas Sought by Physician Who Is Being Probed Based on Exemptions From Immunizations Granted Three School Children
By a MetNews Staff Writer
A medical doctor who is appealing a Superior Court order to turn over records of three patients to the Medical Board of California is entitled to neither an automatic nor discretionary stay pending the appeal the First District Court of Appeal declared Friday.
Denying a petition by Dr. Ron Kennedy for a writ of supersedeas, Div. Four ordered that the temporary stay it issued on May 3 will expire at 5 p.m. this coming Friday. The order was signed by Acting Presiding Justice Tucher Alison M. Tucher and Justices Jon B. Streeter and Tracie L. Brown.
Kennedy—a physician who heads an Anti-aging clinic in Santa Rosa—is being investigated in connection with providing exemptions from immunizations to three minors. Under California SB 277, enacted in 2015, each school child must be inoculated even over parental protest, unless a doctor declares that an exception must be made for an individual patient.
Judge Orders Production
The board is seeking medical files of three children Kennedy certified to be exempt, and San Francisco Superior Court Judge Ethan Schulman ordered that those files be produced.
Kennedy has argued that, under Code of Civil Procedure §917.2, he is entitled to a stay if he posts an undertaking. That section provides:
“The perfecting of an appeal shall not stay enforcement of the judgment or order of the trial court if the judgment or order appealed from directs the assignment or delivery of personal property, including documents…unless an undertaking in a sum and upon conditions fixed by the trial court, is given….”
Friday’s opinion declares that automatic stay provisions of the Code of Civil Procedure §916 et seq. apply only to ordinary civil proceedings, not special proceedings.
“The underlying superior court action in this matter—a petition under Government Code section 11187 to enforce an administrative subpoena—is a special proceeding,” the opinion sets forth, because it is based on a statute and was instituted independently of the underlying action.
“The automatic stay provisions of Code of Civil Procedure section 916 et seq. are not incorporated in the Government Code statutes that created the special proceeding used in this case,” the opinion notes.
Denying discretionary relief, the panel said:
“Dr. Kennedy has not shown a discretionary stay is warranted here. We would likely conclude that the superior court acted within its discretion in finding the Board’s interest in obtaining records of vaccination exemptions outweighed the patients’ privacy rights, given that the Board must keep the records confidential during its investigation.”
The case is Kennedy v. Superior Court for the City and County of San Francisco, A157089.
ABC News Report
ABC News reported April 7:
“Medical board Investigators took the unusual step of subpoenaing 12 school districts for student medical records after receiving complaints that Kennedy was writing Inappropriate exemptions. They found that Kennedy had written at least 50 exemptions, using nearly identical form letters, for students in multiple communities….saying that immunizations were ‘contraindicated’ for a catchall list of conditions Including lupus, learning disability, food allergies and ‘detoxification Impairment.’…
“Like Kennedy, many of the doctors granting unorthodox exemptions cite their belief in parental rights or reference concerns not supported by conventional medical science. Kennedy is suing the medical board and its parent agency, the California Department of Consumer Affairs, saying the state did not have the legal right to subpoena school districts for his patients’ medical records without first Informing him so he could challenge the action in court. The case is ongoing.”
Copyright 2019, Metropolitan News Company