Photo: Plaintiff Dr. Stephen Skoly

“[People] it has been well said, think in herds; it will be seen that they go mad in herds,
while they only recover their senses slowly, one by one.”

― Charles MacKay, Extraordinary Popular Delusions and the Madness of Crowds (1841)

Proving the truth about going “mad,” Rhode Island, in response to the COVID-19 Delta variant, enacted an excessively broad vaccine mandate for health care workers. As should have been foreseen, but was not (as is typical of political actions taken in fear and haste), the mandate has harmed the public: The termination of workers unwilling to be vaccinated has created staffing shortages so critical that Rhode Island has been forced to allow COVID infected workers to treat vulnerable patients. A victim of that mandate―the dental surgeon Stephen T. Skoly, Jr. of Cranston―is now testing in federal district court the lawfulness of Rhode Island’s conduct.

Dr. Skoly once ran a robust dental and surgical practice. He and his five surgical assistants daily treated forty patients. Dr. Skoly never charged patients in need and was (and is) known in the community as a doctor who provided pro bono care. He was also the dental surgeon for the Eleanor Slater Hospital (Rhode Island’s psychiatric rehabilitative hospital) and the Adult Correctional Institute, the State penitentiary in Cranston.

After the March 2020 COVID-19 lockdowns, Dr. Skoly and his staff continued to treat patients in person—the only way that surgical procedures can be performed. They engaged in scrupulous masking and other hygienic requirements. The precautions worked: Dr. Skoly is not aware of a single patient testing positive for COVID-19 as a consequence of his treatment by Dr. Skoly. The doctor himself was not so fortunate. He contracted COVID-19 in 2020.

In August 2021, the Governor, through the Rhode Island Department of Health (RIDOH), promulgated an emergency regulation requiring all health care workers to be vaccinated against COVID-19 by October 1, 2021.

Dr. Skoly could not comply. He has a history of Bell’s palsy, a facial paralysis that is a known risk of COVID-19 vaccination. According to the scientific literature, Bell’s palsy paralysis is a virus that is “dormant” in a person’s body. Dr. Skoly did not fear that he might suffer Bell’s palsy for a first time, or think that a general fear of Bell’s palsy should exempt him, or anyone, from the vaccine mandate. However, based on conversations with his physician, and his own reading, he had a specific, science-based fear that vaccination would re-ignite the paralysis dormant in his body, resulting in a potentially permanent paralysis. The Rhode Island vaccine mandate allowed for a limited number of narrow medical exemptions. The exemptions did not include a prior history of Bell’s palsy paralysis.

On September 30, 2021, Dr. Skoly discussed his decision to not be vaccinated, and his concern about Bell’s palsy paralysis, with a journalist, who reported the conversation in a news article. The next day, the RIDOH issued a Compliance Order directing Dr. Skoly to cease practicing.

The adverse consequences for Rhode Island were immediate. In a State with a desperate shortage of dental surgeons, Dr. Skoly’s distinguished medical career was ended. His ten employees became unemployed. His hundreds of patients―eight hundred private patients a month and dozens of State patients―were deprived of medical care.

After failed attempts to convince Rhode Island to allow him to treat his patients, Dr. Skoly has been forced to go to the court to vindicate his and his patients’ rights.

The sole justification of the health worker vaccine mandate is the protection of the vulnerable patient—that the health care worker does not infect the patient. Although Dr. Skoly with his history of Bell’s palsy paralysis did not qualify for a medical exemption, Rhode Island has granted 365 vaccine exemptions to other health care workers. The exemption allows these 365 unvaccinated workers to work in the immediate physical proximity of the vulnerable patient. The only safety requirement imposed on these unvaccinated workers―allowing them to keep their employment while protecting the patient―is that the exempt, unvaccinated worker is N95 masked in the patient’s presence. In other words, Rhode Island has determined that, in terms of patient safety, N95 masking is a full and acceptable substitute for vaccination.

Dr. Skoly is willing to wear an N95 mask (which he always does anyway as a surgeon). It is an indefensible and irrational denial of Dr. Skoly’s right to the Equal Protection of the Law that Rhode Island allows 365 workers to continue in their livelihoods so long as they are N95 masked, while ending Dr. Skoly’s professional career even though he is willing to be N95 masked. This issue has been presented to the federal district court.

Rhode Island has also violated Dr. Skoly’s right to Due Process of Law. Dr. Skoly has a valid medical reason to forego this vaccine. To require Dr. Skoly to choose between vaccination (and potential paralysis) and his livelihood is cruel—and a violation of Due Process. Imposing this choice on Dr. Skoly is also not necessary to protect the public: In terms of patient protection, the State’s accepted substitute of N95 masking is available.

In addition to N95 masking, in terms of patient protection, Dr. Skoly is COVID-19 recovered. He has natural immunity which, as the federal government has finally acknowledged, is as good if not better than vaccination in terms of lowering the risk of infecting third parties. As the Centers for Medicare and Medicaid Services has acknowledged, the naturally recovered are “no longer sources of future infection.”

Though people go mad in herds, they ultimately “recover their senses slowly, one by one.” Whether Rhode Island is at the stage of slow recovery is before the court. If so, Dr. Skoly is confident that he can re-assemble a skeleton staff, and begin performing the most necessary surgeries (for all patients, including those at Eleanor Slater and the penitentiary), within 48 hours of the issuance of a TRO. He will prioritize treatment to the most needy. Hundreds of patients are praying for his success.