Autumn 2004
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
|
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.”
“This is a message to the Medical Board staff that they cannot
go on fishing expeditions.”
Said 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.”
The Board (counseled by the state Attorney General’s office) decided to petition
the state supreme court for review of the appellate-court decision. On June
30 the supreme court denied review.
David
Bearman, MD
|
On August 4, the superior court vacated its order issuing the subpoena
and directed Dr. Bearman’s attorneys to prepare an order denying the petition for
the subpoena. Dr. Bearman was awarded costs on appeal and may make a claim
for attorney fees.
Just and Noble Were Neither
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.
The Appeal
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.”
The Medical Board had also argued that N. waived his right of privacy when
he showed his letter of approval to the Park Ranger. As precedent they cited
a case in which a patient had filed a lawsuit. Not applicable, the appeals
court ruled. “This is not a case where N. voluntarily initiated an action placing
his medical records at issue. Instead, N. produced Dr. Bearman’s letter as
evidence that he qualified for... protection against criminal prosecution...
“By passing this law, the voters intended to facilitate the medical
use of marijuana for the seriously ill.”
—Judge Laurence Rubin
By passing this law, the voters intended to facilitate the medical
use of marijuana for the seriously ill. This purpose would no doubt
be defeated if, as a condition of exercising the right granted by section
11362.5, a person waived his or her right of privacy simply by producing
a physician’s written recommendation. Interpreting section 11362.5
as necessitating the waiver of a fundamental right in order to enjoy
its protection would, we believe, hinder rather than facilitate the
voters’ intent.”
The appeals court granted Bearman “recovery of costs” —meaning the cost of
photocopying his legal briefs. The system provides no recourse for recovery
of legal costs when a doctor responds to a Medical Board investigation. Two
of Bearman’s attorneys worked pro bono, and one gave him a steep discount;
nevertheless, the tab will approach $20,000. Bearman hopes to raise it at a
benefit victory party in El Capitan Canyon October 17. (The event was originally
set for June but postponed due to a fire.)
The Wrong Doctor to Confront
The Medical Board picked the wrong doctor to confront over questions involving
quality of care and privacy. For much of his career Bearman was medical director
of the Santa Barbara Regional Health Authority, for which he set up quality-assurance
and peer-review programs. The agency got a large grant to study “medical data
connectivity,” which Bearman defines as “sharing medical information over the
internet with appropriate protections for confidentiality.” That project, he
says, made him “even more familiar with the issues relating to privacy and
who wanted access to what and who could deny access to what.”
Bearman says, matter-of-factly, “The Medical Board overlooked the fact that
I was more knowledgeable and experienced in terms of medical quality [than
their investigator or consultant]... They’re supposed to have your records
reviewed by someone who’s an expert in your field. Clearly, the people who
looked at this didn’t know about cannabis, they didn’t know about drug-abuse
prevention, and they didn’t know about quality.”