Pubdate: Wed, 07 Apr 2004
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2004 Anderson Valley Advertiser
Contact:  http://www.mapinc.org/media/2667
Author: Fred Gardner
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

PRIVACY WINS IN BEARMAN CASE

David Bearman, MD, a Santa Barbara doctor who refused to turn over a 
patient's file subpoenaed by the state Medical Board, has been vindicated. 
On April 1 a state appellate court ruled that the subpoena should never 
have been issued because the Board "failed to demonstrate sufficient facts 
to support a finding of good cause to invade the patient's right of privacy."

Says Bearman, "This is a message to the Medical Board staff that they 
cannot go on fishing expeditions. It's more than a victory for Prop 215, 
it's a victory for civil liberties."

Bearman's lawyers doubt the Medical Board will appeal to the state supreme 
court.

The saga began in April 2001 when Bearman's patient, N., a 21-year old 
migraine sufferer (who also had been diagnosed with depression and ADD), 
went camping with three friends in the Lake Piru Recreation Area. A search 
of their vehicle by Forest Ranger James Just turned up a small quantity of 
cannabis. N. claimed ownership and showed Ranger Just a letter from Dr. 
Bearman authorizing him to medicate with cannabis. Just photocopied the 
letter, in which Bearman had written:

"You reported to me that using marijuana relieves your medical symptoms of 
migraines and ADD. I have evaluated the medical risks and benefits of 
cannabis use with you as a treatment pursuant to Health and Safety Code 
section 11362.5. I recommend/approve of your use of cannabis for relief of 
pain and nausea of migraines and decreasing the frequency and intensity."

Ranger Just then wrote to the Medical Board opining that Dr. Bearman's 
letter of approval for N. "may exceed his scope of practice, violate 
medical ethics, and be objectionable to California law." Just asked the 
Board to take "appropriate actions." The Board -which investigates about 
2,000 of the 12,000 complaints it receives annually-decided to pursue 
Ranger Just's suspicions of Dr. Bearman.  They assigned Senior Investigator 
Linda Foster and Randolph Noble, MD, to determine whether Bearman had been 
guilty of "gross negligence... incompetence, or... dishonesty or 
corruption" in his treatment of N.

Noble, the Board's expert, wrote a declaration revealing profound 
misunderstanding of Prop 215: "Review of the Medical Marijuana statute 
(section 11362.5) reveals that marijuana can be used for seriously ill 
Californians and is to be recommended by a physician who is a primary 
caregiver and the indications include migraine headaches, however, there is 
no mention of attention deficit disorder."  In fact, the law allows 
cannabis users to get approvals from doctors who are not their primary-care 
providers, and to treat any condition for which cannabis provides relief.

Bearman, who is 63 and has always been in good standing 
professionally,  says he learned he was under investigation when he got a 
phone call from N. in September 2001.  "He said he'd been contacted by the 
Board and said he wasn't going to authorize the release of the records. He 
just wanted to check that turning them down was the right thing to do. I 
said that they were his records, and that they were private, and that it 
was up to him. About a week later I got a certified letter from the Board 
requesting N.'s records."

Bearman discussed his plight with State Sen. John Vasconcellos. Months 
passed with no word from the Medical Board, and Bearman began to think that 
Vasco had induced them to call off the investigation.  Then he got another 
certified letter requesting N.'s medical records.  Bearman notified the 
Board that he had a professional obligation to fight the subpoena.  More 
months passed and then, says Bearman, he got a letter "just like the one 
before, as if we'd had no previous correspondence." Eventually (March 
2003), after briefings and more briefings, the matter wound up in Superior 
Court in Los Angeles where Judge Dzintra Janavs upheld the subpoena and 
gave Bearman a month to appeal.

While Bearman was preparing his appeal, the Medical Board tried to get an 
Administrative Law Judge to fine him $1,000 per day for not complying with 
Judge Janavs's order. "My attorneys kept assuring me that we had a defense 
against the fine," says Bearman. "It seemed so inequitable. I trusted them 
and I trusted the justice system enough... My wife, I think, was more 
concerned." If Bearman had not prevailed in the appellate court, the fine 
could have totaled $115,000; but his victory makes the fine proceedings moot.

Bearman's appeal was heard by a three-judge panel from the Second Appellate 
District. Briefs were submitted in September '03, including a 50-page 
amicus brief on Bearman's behalf from the California Medical Association 
(drafted by Catherine Hansen and Alice Mead). Bearman was represented by 
Seymour Weisberg, Alison Adams, and Joseph Allen (the former district 
attorney of Mendocino County). Attorney General Bill Lockyer assigned four 
prosecutors to represent the Medical Board; Deputy AG Paul Ament did the 
oral argument.

In October the appeals court issued an interim ruling that would have 
quashed the subpoena unless the Medical Board chose to submit another 
brief. The Board chose to submit another brief -your taxpayer dollars at 
work- and another round of oral argument ensued on Jan. 27 '04.

The April 1 ruling was unanimous. Judge Laurence Rubin wrote the opinion, 
stating: "When the Medical Board seeks judicial enforcement of a subpoena 
for  physician's medical records, it cannot delve into an area of 
reasonably expected privacy simply because it wants assurance the law is 
not violated or a doctor is not negligent in treatment of his or her 
patient. Instead, the Medical Board must demonstrate through competent 
evidence that the particular records it seeks are relevant and material to 
its inquiry... This requirement is founded in the patient's right of 
privacy guaranteed by Article I of the California constitution, which the 
physician may, and in some cases must, assert on behalf of the patient."

The appellate court judges relied on several directly relevant precedent 
cases. Their ruling amounts to a serious rebuke of the Medical Board. "The 
declarations included no facts [italicized by the judge] even suggesting 
Dr. Bearman was negligent in Nathan's treatment, that he indiscriminately 
recommended marijuana, the circumstances under which marijuana may arguably 
be prescribed for migraines or attention deficit disorder, or that Dr. 
Bearman in any way violated section 11362.5. The statements regarding Dr. 
Bearman's possible unethical conduct made by Ranger Just, Investigator 
Foster, and Dr. Noble are nothing more than speculations, unsupported 
suspicions, and conclusory statement drawn solely from Dr. Bearman's letter 
to N. and the simple fact he recommended the use of marijuana."

Judge Rubin noticed that Bearman's letter only approved cannabis use for 
the treatment of migraine. "The Medical Board further contends," wrote the 
judge, "Dr. Bearman recommended marijuana for attention deficit disorder, 
which is not a listed illness in section 11362.5. While Dr. Noble and 
Investigator Foster stated in their declarations the subpoena was necessary 
because of this recommendation, it is clear they misread both Dr. Bearman's 
letter and the statute, which does not limit the use of marijuana to the 
listed illnesses."

Also on April 1 -the very day Dr. Leveque was supposed to be testifying to 
Congress-he learned that the Oregon Medical Marijuana Program is denying 
permits to about 500 of his patients whose paperwork had not been processed 
at the time his license was suspended (March 4).
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MAP posted-by: Jay Bergstrom