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The Massachusetts medical board last month revoked the medical license of Dr. Mary Kelly Sutton, following the California medical board’s decision last year to revoke her license for, according to the board, improperly exempting eight children from required school vaccinations.
The California board alleged that Sutton — an integrative physician, licensed and practicing since the early 1970s — had written the exemptions based on a rationale that was not fully compliant with the Centers for Disease Control and Prevention’s (CDC) Advisory Committee on Immunization Practices (ACIP) guidelines.
The board disciplined her as part of California’s move in recent years to cut back on medical exemptions for vaccines by sanctioning doctors who provide them.
California first revoked Sutton’s license on Dec. 8, 2021, effective January 2022. She appealed the revocation, filing two writs of mandate in Superior Court in March 2022. The California board had prematurely closed her case despite the filing of the writs, and the ongoing appeals process.
On Dec. 20, 2021, the Massachusetts Board of Registration in Medicine filed a complaint against Sutton, saying it was enacting “reciprocal discipline” against her, mirroring the discipline imposed by the California board — even though Sutton had not violated any rules or laws in Massachusetts, where she had been licensed to practice medicine since 2015.
The Massachusetts board informed Sutton that a committee would investigate her actions and make a disciplinary recommendation to the board unless she opted to resign.
Sutton was residing and practicing in Massachusetts at the time, where she had moved to be near her grandchildren. She had no interest in resigning.
Upon learning her California case was being appealed, the Massachusetts board initially stayed the proceeding.
But on Sep. 8, 2022, the board issued a Statement of Allegations against Sutton, stating that she had engaged in conduct — in California — that placed into question her ability to practice medicine, that she “lacks good moral character” and has behaved in a way that “undermines the public confidence in the integrity of the medical profession.”
The allegations were addressed to the Division of Administrative Law Appeals (DALA), an independent agency that conducts due process adjudicatory hearings for Massachusetts state administrative agencies.
The document ordered Sutton to show cause as to why she should not be disciplined in Massachusetts.
Sutton told The Defender she had not violated Massachusetts rules in any way or committed any new offenses, and that despite repeated requests, the board shared no information with her about its investigation.
She said she was left wondering, “How did they make this decision? What were the meeting topics? What was the sequence of thinking? And did they know that I already had two lawsuits [challenging the revocation] filed in California?”
“The Massachusetts board turned out to be very aggressive and not inclined to follow normal courtesy and procedures in legal discussions back and forth. But that’s — I’ve learned since then — pretty much characteristic of bureaucracies.
“There’s a level of power given to the administrative state because they’re supposed to be experts in their field, so they feel they don’t have to dot all the i’s and cross all the t’s that would be required in a normal legal argument back and forth where you clearly state ‘these are the facts, these are the key issues.’”
At a pre-hearing conference on Nov. 15, 2022, the opposing counsel cut the conference short, indicating she would introduce a motion for summary decision.
That meant there would be no discussion of charges, evidence presented or questions responded to. Instead, they would “go straight to discipline,” Sutton said.
“In effect … it was kind of like ‘Shut up and sit down,’” she said.
Sutton said the “Division of Administrative Law Appeals in Massachusetts is assigned a role of being the neutral arbiter and very clearly sided with the Massachusetts Board of Medicine from the beginning.”
Sutton recounted her experience with the bureaucracy:
“Every request I made for records for discovery, whether it was documents or responses to questions or admissions, was denied. Every motion I made was denied. And at a certain point in January, I felt like, ‘This is going nowhere. This is not a real case. There’s nothing relating to the rules that’s happening.’ So I said, ‘On my side, the case is closed.’”
But the medical board continued to make decisions, she said.
Rachel Shute, the Massachusetts board’s complaint counsel, submitted the promised Motion for Summary Decision to revoke Sutton’s license on Nov. 30, 2022, and DALA magistrate John Wheatley accepted it.
The board met on July 13 and revoked her medical license in Massachusetts, informing her only in a brief letter indicating that new information would be appearing in her physician profile by Aug. 12.
In response, Sutton filed a complaint in Superior Court against the medical board, its council, DALA and the two DALA magistrates involved in the case, requesting that it set aside the board’s decision. She is awaiting a response.
California’s road to eliminating vaccine exemptions
In 2012, after a decade of increasing numbers of parents seeking exemptions for their children, California passed Assembly Bill 2109 (AB-2109) to restrict the ability of parents to have their children exempted from vaccine requirements based on personal beliefs.
Where before parents simply had to write a letter stating their personal beliefs, the new law stipulated that parents seeking exemption for their children must get the signature of an authorized healthcare provider stating that parents had received information about the risks of not being vaccinated.
In 2015, allegedly prompted by a measles outbreak at Disneyland — that the media blamed on unvaccinated children — and low vaccination rates in many California schools, Democratic State Sens. Richard Pan and Ben Allen authored a controversial bill, SB 277, that eliminated the “personal belief exemption” altogether.
Several years later, during the COVID-19 pandemic, Pan also proposed legislation — which did not pass — mandating the COVID-19 vaccine for all school children, with no personal or religious exemptions permitted — even prior to the full approval of the vaccine for children by the U.S. Food and Drug Administration.
He also wrote a 2021 op-ed in The Washington Post likening “anti-vaccine extremism” to domestic terrorism.
The passage of SB 277 in 2015 made California the first state in nearly 35 years to eliminate nonmedical vaccine exemptions. Beginning in January 2016, nonmedical vaccine exemptions were no longer accepted for school entry.
California bill left ‘norms for exemption open to interpretation’
Sutton said SB 277 passed by continuing to allow “strong freedom of doctors to exercise professional judgment regarding the reason for the [medical] exemption.”
For example, the first version of the bill proposed medical exemptions be granted only for children with “contraindications,” but that language was then broadened. The law said children could be exempted for “circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization.”
Following the passage of the law, Sutton said, “A number of doctors read the bill, believed it, and began giving vaccine exemptions. And I was among them. And over time we have been sort of picked off with discipline to our licenses.”
Dr. Douglas Hulstedt, a pediatrician whose license was also revoked by the California board earlier this year for providing an allegedly improper vaccine exemption, also told The Defender that he and other doctors provided exemptions in accordance with SB 277.
He said he did so to the best of his ability based on “reading the committee hearings and understanding the criteria they were using. That was all I could go on. There wasn’t anything else.”
He added that he didn’t agree with SB 277, “but I went along with it.”
Research published in the American Journal of Public Health also found the language of the law left norms for exemption open to interpretation.
Physicians such as Sutton — and at least 11 others since 2020 who were disciplined for providing improper vaccine exemptions following the 2015 law — were accused of failing to comply with the CDC’s ACIP guidelines for exemptions.
But, Sutton said the ACIP guidelines don’t address exemptions, nor were any administrative procedures ever established for how to implement SB 277.
“So, doctors are supposed to know that this ACIP guideline that never mentions exemption is in fact an exemption guideline,” she said.
Charity Dean’s ‘Medical Exemption Pilot Project’
Following the passage of SB 277, in 2016, the Santa Barbara County Department of Public Health created a Medical Exemption Pilot Program (MEPP), led by its then-public health officer Dr. Charity Dean.
Dean later emerged as a key voice designing harsh COVID-19 public policy in California and was profiled as a “COVID-19 public health policy visionary” in Michael Lewis’ book, “The Premonition: A Pandemic Story.”
The MEPP was designed as a project to surveil and discredit medical exemptions they found to be “not appropriate,” because they are out of compliance with SB 277. On June 6, 2016, the project sent a letter to schools directing them to fax all exemptions to the health department office so they could be inspected for compliance.
At the time, Voice for Choice Advocacy, a parent’s group, objected to the program, accusing it of “overreach.”
They wrote, “A Voice for Choice Advocacy firmly believes that the reason for this program was to collect doctor information so that those doctors writing Medical Exemptions could be targeted.”
After these complaints, the MEPP retracted its initial letter to schools and changed the description of its mission as seeking to provide “procedural support” to schools and requesting the children’s personal health information be redacted from faxed exemptions.
A Voice for Choice also found, through a Public Records Act request, that Sacramento and Marin Counties were implementing similar programs.
Leaked meeting notes from the California Conference of Local Health Offices in July 2016 showed health officials across the state strategizing how to expand the pilot program statewide. They wanted the legal power to launch investigations into physicians providing exemptions and refer them to the medical board — a process they noted would be exempt from public records requests.
They also complained about the number of public records requests they were receiving and discussed “alternative approaches” to getting around them.
In that meeting, Dean indicated the National Institutes of Health was interested in collaborating with the MEPP.
In the same meeting, the participants moved to communicate with the California Department of Public Health (CDPH) to get a statewide consistent response to evaluating the implementation of SB 277.
Attorney Leigh Dundas in 2019 sent a letter to the U.S. Department of Justice demanding an investigation into Charity Dean and California Health Officers for conspiring to release protected data of minors and to investigate their manufacture of ongoing investigations into doctors providing medical exemptions.
Her letter contained further details of the 2016 meeting, including one doctor saying, “I’m not really interested in going after the parents. There’s a systems-level opportunity here, and I — personally — would like to smoke out their physicians.”
Another doctor commented they were not worried about the legal implications because “It’s fun to be sued by those whackjobs.”
California protected the ‘public health department and its policies’ rather than patients
As part of this process, Sutton told The Defender, eventually school nurses and other health officials were guided to screen exemptions and send them to the CDPH.
She recounted how she received, as part of discovery evidence, a file containing the unredacted health information of hundreds of children — all shared without their families’ consent.
“So while the medical board’s stated mission is the protection of consumers, consumers used to be known as patients. And I think it’s a misnomer to call a patient a consumer because medicine’s not a retail exchange.
“The protection of patients or consumers is meant to be the mission of the medical board. And in this case, it became the protection of the public health department and its policies.”
Sutton explained how Pan began a media campaign describing “greedy doctors who were overcharging” and profiting from vaccine exemptions.
Hulstedt said he considered “besmirching the reputation” of the accused doctors a key part of the strategy to discipline them. The process cost them their licenses, their reputations and hundreds of thousands of dollars in legal fees, he added.
Eventually, three complaints were filed against Sutton, but none were from patients and none were related to injury. They were all filed by a school official or public health official who informed the board she was writing erroneous exemptions.
“These are people all following orders to submit a complaint,” Sutton said. “They are functioning in an employee capacity.”
Eight of the approximately 800 vaccine exemptions Sutton had written over the course of her career were challenged and were the basis for the board revoking her license.
The bases for those exemptions included, for example, family histories of serious adverse reactions to vaccines or autoimmune disorders.
In June 2021, Sutton had a three-day trial that took place in an administrative court with a single judge and no right to a jury.
During her trial, Sutton was represented by attorney Rick Jaffe, who marshaled evidence from three top experts in defense of Sutton’s methods to protect patients from vaccine injury.
The state produced one expert, who lacked basic knowledge of vaccine risk, and who stated that all doctors should follow whatever the CDC’s one-size-fits-all vaccine schedule recommends at any given time.
In that trial, Sutton reviewed each of the relevant patient records cited by the medical board as evidence of her non-compliance with CDC recommendations and explained the children’s vaccine risk based on the individual patient’s complex medical histories.
Her witnesses included Dr. Andrew Zimmerman, world-renowned pediatric neurologist and one of the foremost authorities on autism, Dr. James Neuenschwander, family physician, and Dr. LeTrinh Hoang, pediatrician, who all have extensive medical knowledge of vaccines and vaccine injury.
Despite those testimonies, the board ruled against her.
Sutton continues to appeal the revocation in California and is also now appealing the revocation in Massachusetts.
Hulstedt said he was shocked to watch several incredible physicians be subject to an opaque and unjust disciplinary process in which “due process has been obliterated.”
He added, “Kelly Sutton is an extraordinarily good physician. You watch this stuff play out and it’s just, I don’t know, you can’t make this stuff up.”