Initial Draft of Lawsuit Filed Against State of Hawaii's Health Directors Regarding Their Gross Criminal Negligence in the Practice of Tuberculosis Skin-Testing Low Risk Children for School Access Contrary to Official Federal Standards

Tuberculosis skin testing of low risk school children in violation of national public health standards and CDC advisories is still ongoing in Hawaii. Dr. Horowitz has been laboring legally and legislatively since 2002 to rebuke this affront to the public's health. This draft presents the essential elements of a new (Sept. 2006) legal complaint against state public health officials detailing their offenses.



IN THE CIRCUIT COURT OF THE THIRD CIRCUIT, STATE OF HAWAI‘I, HILO DIVISION,
HILO, ISLAND OF HAWAII
CIVIL No. ______________________
(Criminal Religious Persecution and Harassment)
Plaintiff(s): LEONARD G. HOROWITZ and ALENA N. HOROWITZ
-against- :
STATE OF HAWAI‘I, :
HAWAI‘I DEPARTMENT OF HEALTH, :
The Department of Public Health, Tuberculosis Control Program of the State of Hawaii :
JUDITH AKAMININI, Nurse Supervisor and Director, Tuberculosis Control Program, State of Hawaii, in her individual and official capacities, and
HILO HIGH SCHOOL;
JOLANDA ROSARIO, Nurses Aid, Hilo High School
Defendants


SUMMARY OF COMPLAINT


This case is brought by a father to protect his daughter’s religious freedom and civil right to attend school without sustaining physical injury, psychological abuse, and administrative harassment.

On September 5, 2006, ALENA HOROWITZ was forced from class and expelled from her high school indefinitely for failing to obtain religiously objectionable and medically contraindicated treatment called “tuberculosis (TB) skin-testing.”

By ignoring State of Hawaii law, §302A-(1156) and neglecting Department of Health Administrative Rules,’ the Defendants falsely assumed legal rights and criminally administered their power of office to the detriment and damage of the Plaintiffs and the public’s health at large.

The Plaintiffs hold that ignorance of the law and definitions in Administrative Rules does not excuse the Defendants for damaging a child’s right to her education, social life, religious liberties, emotional happiness, all freedoms guaranteed by State statutes and the U.S. Constitution.

A special urgent appeal to the court for injunctive protection of this child to maintain the status quo and restore her right to attend school and rejoin her teachers, friends, coaches, and teammates so as to prevent already mounting psychological trauma, physical stress, and emotional distress is herein prayed.

COMPLAINT FOR INJUNCTIVE RELIEF

NOW COMES Plaintiffs ALENA N. HOROWITZ, a 14-year-old high school student, and her parent and legal guardian LEONARD G. HOROWITZ, by and through their attorney Gary Zamber, for cause of action against the above-named Defendants, alleges and avers as follows:

1. Plaintiffs are residents of the County and State of Hawaii, whose address is 490 Kukuau Street, Hilo, HI 96720

2. Defendant  JUDITH AKAMININI, in her individual and official capacities, is Nurse Supervisor and Director, Tuberculosis Control Program, State of Hawaii

3. Defendant  JOLANDA ROSARIO, in her individual and official capacities, represents the Department of Health as a Nurses Aid at Hilo High School.

4. The first week of April 2006, the senior Plaintiff contacted Hilo High School admissions officer requesting admission requirements for ALENA to transfer from school in Idaho to Hilo High School. At this time he was informed that a medical doctor’s examination and declaration for TB-free status was required.

5. On April 13, 2006, the Plaintiff’s paid licensed pediatric physician Joyce Gilbert, M.D., F.A.A.P. (ID Lic M-4954) to conduct this examination following which she wrote a notation on her prescription pad, as routinely accepted in her state, “Alena is free of any contagious disease, and is free of TB.”

6. On or About July 27, 2006, the Plaintiffs presented Dr. Gilbert’s certification of TB-free status to an unknown admissions officer at Hilo High School at which time an additional written statement electing exemption from required vaccinations (as also permitted by law §302A-1156) was provided the school.  

7. In the afternoon of Thursday, July 31, 2006, the Plaintiffs were notified by Defendant ROSARIO that Dr. Gilbert’s TB-certification was unacceptable, and that the child must comply with “mandatory” TB skin-testing in order to remain in school.

8. Later that day senior Plaintiff Horowitz, who is an internationally recognized authority in public health and emerging diseases prevention contacted Defendant AKAMININI who informed Dr. Horowitz that he had till Tuesday, (given the Labor Day holiday) to make a decision about getting ALENA skin-tested.

9. On the morning of Friday, September 1, 2006, approximately two hours after the child was dropped off at school, the Defendants violated State of Hawaii statute §302A-1156 by forcing the Plaintiff from class and expelling her indefinitely for failure to comply with standard TB skin testing requirements exclusively affecting secular students according to §302A-1154 and 1156.

10. Providing his palliative direction and medical-legal expertise, the senior Plaintiff appealed vigorously and unsuccessfully to school administrators for relief. Department of Education officials, forced to comply with Department of Health directives, were unable to vacate the order for dismissal.

11. Defendant ROSARIO, and later that afternoon, Defendant AKAMINI who ordered the student’s dismissal refused to reconsider their actions. They pleaded their false condition of mind that no religious exemption exists for “TB-Clearance” when, in fact, §302A-1154 and 1156, and Department of Health Administrative Rules state otherwise.

12. As a result of this provable neglect of law the Defendants have damaged: a) this child’s right to her education; b) restricted her social life; c) violated her civil liberties and religious freedom to abstain from a blood intoxicating medical treatment; d) inflicted mental and emotional distress; and d) terminated her varsity athletic training on the cross country team. In essence, the Defendents violated many freedoms guaranteed by State statutes and the U.S. Constitution.

13. NOTICE IS HEREBY GIVEN THAT THIS ACTION IS AN ATTEMPT TO OBTAIN INJUNCTIVE RELIEF TO STAY THE CHILD’S DISMISSAL ORDER TO MAINTAIN HER STATUS QUO IN SCHOOL UNTIL THIS COURT MAY RULE ON THE FACTS.

WHEREFORE, Plaintiff’s pray:

1.   That process served herein citing and summoning Defendants to appear and answer to this COMPLAINT as by law provided, and to stand to and perform and abide by such orders, decrees and directions as may be made and entered herein.

  1. That upon a hearing being held hereon there be ascertained the extend to which the Defendants may be found negligent.
  2. That there is due and owing to Plaintiffs by virtue of said damages, a certain sum of money and that such sum of money, including all costs, expenses, attorneys’ fees, and any special damages that may be awarded determined.
  3. That the Plaintiffs have such other and further relief as may be just and equitable.

LAWFUL FACTS
Relevant Hawaiian legal statues and details of violations victimizing the Plaintiff follow:

1. Reg. §302A-1154, including both administrative processes “immunization” and “TB clearance” required for school entrance states:
(a) No child shall attend any school in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has received immunizations against communicable diseases as required by the department of health.
(b) No child shall be admitted to attend any school for the first time in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has been examined and tested according to the rules of the department, and is free from tuberculosis in a communicable form. [L 1996, c 89, pt of §2; am L 1998, c 60, §1; am L 2000, c 109, §1]

2. Reg. §302A-1156 (and likewise Department of Health  §11-157-4.1 similarly states) exemptions shall be granted upon request. It states:
“A child may be exempted from the required immunizations:
(1) If a licensed physician certifies that the physical condition of the child is such that immunizations would endanger the child's life or health; or
(2) If any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on the grounds that the immunization conflicts with that person's bona fide religious tenets and practices. Upon showing the appropriate school official satisfactory evidence of the exemption, no certificate or other evidence of immunization shall be required for entry into school. [L 1996, c 89, pt of §2]

  1. Critical definitions from the Department of Health Administrative Rules book include:
    1. ”Immunization” means the process of administering a specific substance to promote an immune response, including antibody production.
    2. “ Mantoux tuberculin test” means an intradermal injection of five tuberculin units of Purified Protein Derivative in 0.1cc of sterile diluent, followed within forty-eight to seventy-two hous by recording of the palpable induration, with a positive reaction being 10 mm or greater in its traverse diameter.
    3. “Immunizing agent” means a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.
    4. “TB-clearance” . . . NO DEFINITION PROVIDED.

DEMAND FOR TRIAL BY JURY
Plaintiffs hereby demand trial by jury.
Dated: Hilo, Hawaii
September 6, 2006
Leonard G. Horowitz and Alena N. Horowitz

 

Dr. Leonard G. Horowitz co-authored this legal challenge to the state's TB skin testing program. Dr. Horowitz is an internationally known authority in public health and emerging diseases. One of his three national best-sellers, Emerging Viruses: AIDS & Ebola—Nature, Accident or Intentional? is credited by federal health officials as being among the most persuasive vaccine risk awareness texts in America.

Dr. Horowitz lives with his wife and three unvaccinated children on the Big Island of Hawaii. His official website is www.drlenhorowitz.com.