by John-Michael Dumais, Childrens Health Defense:
In an exclusive interview with The Defender, Dr. Mary Kelly Sutton talked about losing her license in a third state, New York, after California and Massachusetts previously barred her over eight disputed vaccine exemptions. Sutton argued her judgment and then-applicable laws were unlawfully misconstrued by an unelected administrative body.
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Dr. Mary Kelly Sutton (who goes by “Kelly”) on Oct. 30 lost her license to practice medicine in New York for writing eight vaccine exemptions in California between 2016 and 2018. New York was the third state to enforce this penalty, after Massachusetts and California. Sutton is now no longer able to practice medicine anywhere in the U.S.
Both the New York and Massachusetts medical boards adjudicated Sutton’s case on the basis of “reciprocal discipline,” rubber-stamping the Medical Board of California’s 2021 decision without allowing her to challenge the validity of the original findings.
Reciprocal discipline avoids the time and costs of relitigating. Therefore, like the Massachusetts Board of Medicine hearing last July, the October hearing in New York was just theater and the board never intended to allow Sutton to defend herself.
Instead, the New York board maintained that the purpose of the hearing was limited to determining what penalty should apply to Sutton’s state license in light of the findings already established in California.
Medical Board of California misinterpreted the law
Sutton, an integrative medicine physician practicing since the early 1970s, told The Defender that the Medical Board of California misinterpreted the law when it determined she violated “standards of care” when writing the vaccine exemptions.
Those exemption-specific standards — which came into effect in 2016 via Senate Bill (SB) 277, a California bill that stripped parents of the personal belief exemption for rejecting vaccines for their children — only stated it was up to the physician to decide on a medical exemption based on the needs of the child.
However, in 2019, California passed two more bills — SB 276 and SB 714 — designed to make vaccine exemptions even more difficult to acquire.
Specifically, when a doctor writes more than five medical exemptions per year (as of Jan. 1, 2020) or a school’s immunization rate falls below 95%, the California Department of Public Health (CPDH) has the right to review the medical exemptions.
Physicians since January 2021 are also required to use a standardized electronic exemption form submitted to a statewide database, and CPDH may revoke exemptions that do not conform to vaccination guidelines established by the Centers for Disease Control and Prevention (CDC) and its Advisory Committee on Immunization Practices (ACIP) and by the American Academy of Pediatrics.
Sutton claimed the Medical Board of California applied its own definition of “standards of care,” in direct contravention to the standard established by SB 277.
“In California, any time a standard of care is written into statutory law, it is more preeminent than a community standard of care that is just held among the general opinion of doctors in practice,” she said.
Sutton believes the Medical Board of California was also applying laws derived from SB 276 and SB 714 that went into effect well after the date she wrote the exemptions.
The CDC’s and ACIP’s vaccine recommendations do not constitute mandates or requirements. According to Sutton, during the lobbying phase of SB 277, a doctor called ACIP and asked whether its recommendations should be considered mandates, and was told that they were only guidelines.
The ACIP guidelines do not mention the word “exemption,” according to Sutton, nor were the guidelines mentioned in SB 277.
“That’s the way guidelines have always been used in standards of care,” Sutton said, calling them “indicators, supports, references — but not mandates.”
Sutton said the mood of medicine is shifting away from a doctor exercising his or her own training and experienced judgment towards doing what the standards and guidelines say.
“This is decidedly against the quality of medicine because there’s no freedom to individualize for the patient,” she said.
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