Pubdate: Wed, 12 Nov 2003
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2003 Anderson Valley Advertiser
Column: Cannabinotes
Copyright: 2003 Anderson Valley Advertiser
Contact:  (
Author: Fred Gardner


There was a tense, unpleasant scene at the Nov. 7 meeting of the Medical 
Board's Division of Medical Quality, which was held in downtown San Diego 
at a chintzy Sheraton located on the 12th floor of a parking garage.  Three 
cannabis-approving physicians had come to monitor the proceedings: Frank 
Lucido from Berkeley, R. Stephen Ellis from San Francisco, and David 
Bearman from Santa Barbara.

The agenda item of special interest was a report from Enforcement Division 
Chief Joan Jerzak on how many of the Board's marijuana-related 
investigations had been triggered by complaints from law enforcement. An 
assertion had been made by Lucido and others at the Board's May meeting 
that none of the complaints had come from patients or their loved ones or 
from other caregivers -implying that the docs had been targeted by 
vindictive cops and DAs. Jerzak's predecessor, Dave Thornton, responded at 
the time that there were only nine such investigations and that not all the 
complaints had come from law enforcement. The Board asked him to confirm 
the facts.

Six months pass and here's Jerzak handing the Board members a page headed 
"Medical Marijuana Investigations" with three columns: "Source," "No. of 
Patients," and "Status." According to this skimpy list, which Jerzak 
described as "data," four of the nine sources were "LE," three were 
"Non-LE" and two were "Non-LE and LE."  The list contained no specifics and 
no documentation whatsoever, yet the Board members perused it without 
comment; evidently they don't hold their Chief Investigator to the same 
standards as California physicians.

"Just to kind of give you a nutshell of what the source column is," Jerzak 
explained, "The first case was a non-law-enforcement source. Those tend to 
be a school principal, a mother, a spouse, those kind of sources..." Can 
you get any vaguer, Chief?

Jerzak said that her staff's review of the files showed that there might be 
"another half a dozen or so cases that might have been tagged as quality of 
care" involving medical marijuana recommendations. "I'm estimating that 
there may be six to 10 other cases that might not be on this list. And I'll 
tell you that since 1997, if we're talking about nine or 19 cases out of 50 
or 60,000 complaints that came in, I think that's what Dave was trying to 
say, when you take 12,000 complaints a year, we're talking about a very 
small number of cases."

Jerzak had invited a young, self-assured attorney, Mary Agnes Matyszewski 
to explain the implications of the U.S. Supreme Court's recent decision not 
to review the Conant v. Walters case.  Matyszewski explained -not quite 
accurately-that the 9th Circuit Court of Appeals had "issued an injunction 
permanently stopping the federal government from automatically suspending 
or revoking a doctor's DEA license merely because he was talking to his 
patient about medical marijuana. When the Supreme Court refused to hear the 
case, the 9th circuit ruling became the law of the area."

The inaccuracy is that the 9th circuit didn't issue the permanent 
injunction, it upheld one issued by U.S. District Court Judge William 
Alsup. This may seem like a minor quibble given the disinformation to that 
was to come from this source.

"But one thing I want to make you aware of," Matyszewski went on, as 
Jerzak, seated alongside her, nodded her head emphatically, "the holding is 
very limited. It's only for a doctor's ability to discuss marijuana with 
his patient as an option. In fact. What the court specifically held in its 
language is that if in making a recommendation the doctor intends the 
patient to use it as a means of obtaining marijuana, as a prescription is 
used as a means for a patient to obtain a controlled substance, then the 
doctor would be guilty of aiding and abetting the violation of federal law 
and he would be subject to federal prosecution and possible surrender of 
his license. So the holding that is allowed right now is very narrow. 
Merely, a doctor is allowed to discuss it with his patients, nothing more.

A Board Member asked, "So you can't give them the--"

"No," declared Matyszewski, "because you do run the risk of violating 
federal law... All that decision said was you can talk to your patient 
about it. But once you get over into the area of recommending, writing a 
prescription, you do run afoul of the federal policy."

Jerzak continued to nod agreement.

Med Board to Dr. Bearman: Shut up!

The public comment session began and David Bearman's name was called. The 
Med Board investigation of Bearman was triggered by a park ranger who was 
convinced that a young man he had caught smoking marijuana was not a bona 
fide patient (despite a letter from Bearman).  Bearman, who is 
semi-retired, has defied a subpoena to hand over the patient's records, 
citing doctor-patient confidentiality. He is confident that the records 
would exonerate his approval of the young man's cannabis use.

No sooner had Bearman given his prepared statement to the chairman, Ronald 
Wender, MD, than Senior Assistant Attorney General Carlos Ramirez 
announced, "There is an an ongoing case against this doctor."

Bearman: I don't intend to talk about the case.

Wender: Is there anything in your handout that deals with your case?

Bearman: Maybe

Weender: I would ask that Mr. Ramirez look at it to make sure that it doesn't.

Bearman took a seat at the table facing the Board members and began 
recounting his impressive resume. "I have a unique combination of 
experience in the area of substance abuse treatment and prevention and 
quality assurance. I have worked for the US Public Health Service. I ran 
the student health service here at San Diego State for a number of 
years.  I was a health officer -director of a county health department. 
Most important, I have a long history in quality assurance. I was the 
medical director and director of the health services department of the 
oldest Medi-Cal managed care program in the state, the Santa Barbara 
Regional Health Authority. And for 14 years I ran the quality assurance 
program and the peer review program, which has received accolades and 
recently won a national award...

"I'm here to talk to you about medicinal cannabis and one thing that is 
related to my case, is that when you assess people for quality assurance, 
there ought to be a quality problem -it shouldn't just be because a 
recommendation was made for the medicinal use of cannabis... it seems a 
waste of tight state resources for the Medical Board to initiate physician 
investigations which are non-quality-based fishing expeditions. An 
investigation of quality of care triggered by things like complaints from a 
forest ranger that a doctor has talked to a patient about cannabis do not 
seem to be appropriate."

By this point both Ramirez and an attorney named Beth Faber Jacobs were 
hovering over Bearman like bailiffs. "You're getting into issues of your 
case," Wender warned.

Bearman responded, "Well, let me just say when the complaint is from a law 
enforcement official.  Okay?  It doesn't make any difference what that law 
enforcement official is. When an investigation is done under color of 
quality issues when there's no real reason to do so, it uses up the medical 
board's credibility and it deters you from your bona fide quality-assurance 
role. You may be having a credibility problem of inconsistency between your 
staff's words and their actions. On the one hand there was a quote in the 
paper from the AG's office that the medicinal-cannabis-related physician 
investigations were not about cannabis but about quality.

Jacobs: Okay, you have a pending case before the board. We cannot have you 
address the panel.

Bearman: Excuse me, but I'm quoting a statement that was in the newspaper. 
Isn't that a matter of public record? What does a quote from the newspaper 
have to do with my case?

Wender:  We will have to keep you within the confines of what our legal 
counsel says is legitimate for you to do... I'm not trying to cut you off, 
because we want public comment. But there are very specific rules which 
pertain to what can be discussed when there is someone with a case pending 
before the board because, again, members of this particular group will be 
on a panel that will...

Bearman: But I'm not discussing my case.

Jacobs: You'll have the opportunity to put on your defense at the hearing 
on your case.

Bearman: I strongly object to this being characterized as my talking about 
my case. I am not talking about my case.

Jacobs: You're talking about an investigation.

Bearman: No, I'm talking about the Board's staff, and I'm sorry if that 
upsets you.

Wender then granted Bearman "a couple of more minutes... as long as it 
doesn't have any inkling as to a case that is before the Board."

Bearman: It's really hard for me to understand how... discussing a quote in 
a newspaper from your staff which, as far as I know, had nothing to do with 
me, how that has to do with my case?...

Ramirez: Again, your honor -I mean, Dr. Wender-there is an ongoing 
investigation in this matter and I'm concerned that the comments that are 
made here will compromise the Board's ability to in the future deliberate 
on the doctor's case if it gets this far.

Wender: We have to abide by our legal counsel's advice...

Bearman: I have the distinct feeling that I am making both the Board and 
your staff uncomfortable, and that was not my intention. Nor was it my 
intention to discuss the specifics of my case... Maybe I shouldn't have 
come in the first place.  Believe me I would not have driven five and a 
half hours through rush hour traffic in Los Angeles to come here. I have 
lots of other things in my life to keep me occupied.

Alsup Is The Law

Your correspondent had not intended to speak during the public comment 
session but decided to challenge Matyszewski's interpretation of the Conant 
ruling. "My understanding," I said with real humility, not being a lawyer, 
"is that the act of approving a patient's cannabis use in writing or 
verbally does not, in and of itself, violate federal law. Only if the 
doctor took additional steps, such as telling the patient where s/he could 
obtain the herb, would there be any question of aiding and abetting."

I was not allowed to share my observations about the Mikuriya case. Jacobs 
and Ramirez both jumped to their feet at the mention of his name. "You 
don't have to get the hook," I told them.

As I was leaving and Frank Lucido was advancing to speak, Matyszewski 
reiterated her reading of the Conant ruling -not in my shuffling, 
apologetic way, but firmly and without leaving any room for doubt. But 
Lucido wasn't intimidated. "I didn't think I would have to set you straight 
on this, but let me tell you what the Alsup decision did say... The federal 
government had said that writing a recommendation is allowing patients to 
break federal law. Judge Alsup said that was not true, there are any number 
of reasons that a doctor could write that recommendation, only one of which 
would be to obtain it. He listed several other reasons. Even if a doctor 
suspects that they may use it to obtain marijuana, there are other uses. 
They may use it to redress their government for grievances; they can use it 
to go to another country where it's legal; they can use it to apply to the 
federal compassionate use program...

"Alsup is the law of the land," Lucido concluded.

Lucido also took on Jerzak: "I know most of the 15 to 20 California doctors 
who are most knowledgable and outspoken about medical cannabis, who in 
spite of legal threats, continue to perform medical cannabis evaluations. I 
find that they compare favorably in safety and caring for patients as to 
California physyicians in general. As you know, at least nine of these 15 
to 20 doctors have had investigations begun into their practice. So I want 
to put this in context: it's not nine complaints out of 60,000, it's nine 
investigations of the 15 or 20 most outspoken. I still contend that almost 
all of these investigations were initiated by law enforcement, and almost 
none by complaints from patients or family members. I think a review of 
Miss Jerzak's audit should be done by somebody independent of the law 
enforcement part. Some of the physicians should look at that.

"Will medical practice be determined by doctors or the police? Law 
enforcement has their cultural bias. As I mentioned in my previous 
testimony, and I checked again yesterday, the website of the CNOA continues 
to have this untruth, quote: 'There is no justification for using marijuana 
as a medicine.' This lie is thoroughly contradicted by the federal 
government's own 1999 Institute of Medicine report. I have seen some of the 
hearings that have gone on and the disingenuousness of the prosecution was 
embarrassing to watch.  [As the lawyers stir] That's all I'm going to say 
about that."

Graham Boyd, the lead lawyer for the plaintiffs in Conant v. McCaffrey, 
confirms Frank Lucido's interpretation of the legal situation. The 
permanent injunction issued by Judge Alsup is the law of the land. Contrary 
to Mary Agnes Matyszewski's assertions, the 9th Circuit discussion did not 
create "governing language" that weakens it. The 9th Circuit could have 
modified the permanent injunction granted by Alsup, or undone it as 
requested by the federal government, but instead chose to affirm it.  The 
question now is: what will the doctors on the Medical Board do in response 
to being systematically misinformed by their lawyers?
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