Winter/Spring 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
|
Medical Board Watch: Mystery
at the Winter Meeting
MBC Drops Prescribed-drug Analogy,
CMA Signs Onto Cannabis Guidelines
By Frank Lucido, MD
I almost didn’t go to the Nov. 5 Medical Board of California (MBC) meeting,
despite my unofficial motto: “I will follow them around like they’re the Grateful
Dead.” It was in San Diego, medical cannabis wasn’t on the agenda (so I thought),
and no one else I knew was going.
On arrival, I got an agenda and various other handouts, and lo and behold,
on the agenda: “Item 4. Proposed Revision to May 7, 2004 Statement to California
Physicians on Medical Marijuana (Wender/Thornton).”
The proposed change was to remove the words “or prescription drug treatment” in
two places from the guidelines originally approved by the Board in May 2004
(without approval from the California Medical Association).
“These accepted standards are the same as any reasonable and prudent physician
would follow when recommending or approving any other medication, or prescription
drug treatment and include the following:
1. History and good faith examination of the patient.
2. Development of a treatment plan with objectives.
3. Provision of informed consent including discussion of side effects.
4. Periodic review of the treatment’s efficacy.
5. Consultation, as necessary.
6. Proper record keeping that supports the decision to recommend the use of
medical marijuana.
In other words, if physicians use the same care in recommending medical marijuana
to patients as they would recommending or approving any other medication, or
prescription drug treatment, they have nothing to fear from the Medical Board.”
When the proposed revision came up for discussion, Dr. Wender described having
met with Vasconcellos to discuss removing the references to prescription drugs,
which the CMA found objectionable. Wender had anticipated a very contentious
meeting but it actually took about 10 minutes, he said. The CMA’s only objection
seemed to be the terminology. “When I said to the Senator, ‘It doesn’t mean
anything, we’ll take it out,’ the meeting ended,” Wender told his DMQ colleagues. “So
I bring it to you for approval.”
David Thornton (the Medical Board’s executive director, having retired with
a full pension as chief of the Enforcement Division) said: “I just wanted to
add the representatives from the Attorney General’s office also were at this
meeting. They said this would not change anything significantly.”
Sandra Bressler from CMA: “We were happy to have the change. It was one we
had suggested from the beginning, and we’re fully in support of the statement
at his point.”
A Minor Mystery
Something mysterious seems to have taken place. Why, if the prescription drug
analogy was a dealbreaker in the first quarter of 2004 when Wender and Enforcement
Chief Joan Jerzak were negotiating with Bressler and Alice Mead of CMA, had
it become insignificant by the time Wender met with Vasconcellos? It doesn’t
make sense to the CMA representatives or to Linda Lucks, a Board member who
helped draft the guidelines.
To date, Wender and Jerzak have not responded to inquiries from O’Shaughnessy’s.
Fred Gardner suspects the prescription-drug analogy was retained in early 2004
at the direction of the Attorney General’s office. “Tod needed to conduct a
good-faith physical exam because of the prescription drug analogy. Their whole
authority for prosecuting him stemmed from their treating marijuana like a
prescription drug.”
My Public Comment/Summary
MedicalBoardWatch.com, I
announced, is now up and running. My intention is to help physicians
safely and appropriately recommend medical cannabis. I post important
information on medical cannabis and physician investigations, as well
as all my testimony to the MBC, and all medical and legal documentation
I have given the Medical Board.
I reminded the Board about inappropriate investigations of physicians for having
recommended cannabis and law enforcement’s institutional bias against cannabis.
I pointed out that Board investigators and undercover police posing as legitimate
patients contribute to rising medical costs and undermine the trusted doctor-patient
relationship, and reiterated my call for an independent audit of the Medical
Board.
MBC Legal Staff
Still Ignores Bearman v. Joseph.
David Bearman, MD, was vindicated in Superior Court after resisting turning
over records of a patient who did not want his personal health information
disclosed. I read comments from Dr. Bearman’s attorney, Seymour Weisberg:
“Medical Board subpoenas should be resisted (unless the patient has waived privacy)...
In short, a physician should not turn over an objecting patient’s records without,
at least, an order from a Superior Court judge...
“Dr. Bearman’s case should also be cited to resist subpoenas for medical records
issued by the prosecution in criminal cases against a patient unless the patient
consents to the disclosure.”
Full text at:
http://www.medboardwatch.com/Bearman-v-Joseph.htm
The Board’s Winter meeting was held Feb. 18 at a hotel near the L.A. airport.
Enforcement Chief Joan Jerzak discussed her priorities, which include improving
the medical-expert program and the system by which cases are prioritized; increasing
filings involving “physician conduct” (see below); and implementing vertical
prosecution. She noted that understaffing has cut into MBC training. Nevertheless,
she has accepted an invitation to train DEA and BNE investigators.
In the public comment period I described the EM report as “far from independent.” I
reiterated key points made previously and cautioned the Board about vertical
prosecution.
“Do not give up any last vestige of physician —or
board— responsibility.”
“Do not give up the last vestige of any physician —or board— responsibility
for directing law enforcement in protecting California’s public from
ACTUAL medical harm.”
My main focus was on the subtle but important change of investigative emphasis. “How
many of you are aware,” I asked, “of the Division of Medical Quality’s change
of focus from ‘Quality of Care’ to something called ‘Physician Conduct?’”
The EM Report criticizes a bill by Sen. Figueroa, SB-1950, that established
investigative priorities for the Board. Author Julianne d’Angelo Fellmeth worries
that “mandated priorities” have “elevated patient outcome over factors which
may be as or more important in enforcement circumstance...
“Patient injury or death is always tragic. But the mere presence of a tragic
outcome should not always dictate prioritization of enforcement activity.”
I asked: “Can you believe this? The EM —read ‘your legal staff’— seem positively
horrified that actual patient harm should rank higher than the possibility
of future harm!”
The Board’s mandate to protect the public, I charged, has become “an excuse
for pre-emptive attacks on whomever your legal staff wants to attack.”
Misplaced Priorities
I shared with them an example of a doctor who had been given
a letter of reprimand —published in the Board’s quarterly Action Report— for “admitting
to and testing positive for use of marijuana.”
I had contacted this doctor, who said that his estranged wife had reported
him as a “pot smoker.” I told the Board, “Your understaffed and underfunded
legal staff found time and money to investigate the report of this misdemeanor,
and drug test him. I wonder how many Dr. Miofskys [infamous for having sex
with patients] you missed prosecuting while your staff was out on this marijuana
witch-hunt, which continues today, and will increase if you agree to vertical
prosecution.”
I closed with a reminder that I am monitoring all cases that come to my attention
of doctors being investigated for having recommended cannabis, and I will post
all relevant information on MedicalBoardWatch.com.
Dr. Lucido can be contacted at drfrank<AT>drlucido.com or by
calling 510-848-0958.
His testimony to the Board and to Sen. Figueroa’s committee can be found linked
on the right-hand column of www.MedicalBoardWatch.com.