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Autumn 2004
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

Why I'm Starting MedBoardWatch.Com

By Frank Lucido MD with Fred Gardner
On July 30, 2004, I announced to the Medical Board of California’s Division of Medical Quality: (MBC DMQ) “I will be monitoring all cases that come to my attention of doctors being investigated for having recommended cannabis. I will be posting all pertinent documents on a new website I will be creating: MedBoardWatch.com.”
My purpose is to collate as many resources and links as I can to shine a light on what the Medical Board and other law enforcement entities have done and are doing.
My goal is to be a resource for doctors, attorneys, patients, patient advocates, legislators, and law enforcement regarding the law, court decisions, medical science, and impediments to it.
I will solicit any and all allegations of law enforcement not complying with the law, and refer to appropriate resources and websites.
Further goals:
• To continue the work we have begun towards normalizing medical cannabis practice.
• To promote safe and appropriate use of cannabis as medicine.
• To promote and track research on safety and effectiveness in conjunction with the California Cannabis Research Medical Group, Americans for Safe Access, and others.
• To teach doctors, patients, the media, and the public how a medical-legal consultation on cannabis is incorporated into a primary care practice: documentation, evaluation (if appropriate), recommendation, advocacy (testimony, letters, etc)
Content on the site initially will include:
• Statements I have made to the Medical Board’s Division of Medical Quality (DMQ).
• My own practice standards, published in the Spring 2004 O’Shaughnessy’s, which the Board has received. (See “ Implementation of the Compassionate Use Act in a Family Medical Practice: Seven Years Clinical Experience”)
• The three statements the Board has made on physicians and medical cannabis in its Action Reports for January 1997, July 2003, and July 2004, plus my critique of them, a comparison to how medicine is actually practiced, and an invitation to other practicing physicians to comment.
• Source documents which have been provided to the Board concerning medicinal cannabis, including “Risks Associated with cannabis use/Missoula Chronic Use Study” (Russo et al, 2002) 1pg Review of Therapeutic Effects (Grotenhermen and Russo, 2002) (pages 124-133) and a summary of “Marijuana Myths, Marijuana Facts” by Morgan and Zimmer. Plus a resource list of relevant websites and books.
• Links to significant legal decisions, and the full text of the Conant v. McCaffrey decision (Judge Alsup) and Conant v.Walters (Judges Schroeder, Kozinski) with the most relevant paragraphs highlighted.
• Statements by two of the attorneys who prevailed in the Conant case (Graham Boyd and Ann Brick).
• A request for physicians to report any actions of the Board they would like posted, including any MBC investigative reports, expert reviewer statements, depositions, etc.
My Motivation
Doctors are afraid —and for good reason. the Medical Board HAS been targeting doctors for all the reasons we have known and/or suspected: prejudice, ignorance, blind commitment to the status quo. This has put a chill on many doctors’ willingness to include cannabis in their armamentarium/formulary. And instead of putting a stop to the pattern, Board members have capitulated to and covered for their law-enforcement staff.
In the year and a half that I have been attending quarterly DMQ meetings, my colleagues and I have witnessed some disturbing things, which have been recorded and transcribed for O’Shaughnessy’s.
At the May, 2003 meeting, held in Sacramento, I and others expressed concern that most of the doctors known for doing cannabis consultations had been investigated and that none of the complaints had come from patients —all had come from law enforcement, as far as we knew.
David Thornton, who was then Chief of Enforcement, responded that there were only nine investigations of doctors involving cannabis approvals, and that not all the complaints had come from law enforcement. The Board asked him to check and confirm the facts at the July meeting.
Thornton must have known that he wouldn’t be present at the July meeting, having already retired.
At the November 2003, meeting held in San Diego, Thornton’s successor, Joan Jerzak handed 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, 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...”

No one on the Board questioned this illogical bracketing of school admini-strators and loving kin.

No one on the Board questioned this illogical bracketing of school administrators and loving kin. [That very week a South Carolina high school principal had directed the local police to search the student body with drug-sniffing dogs, at gunpoint. No drugs were found.]
Jerzak said that her staff’s extensive review of the files indicated “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... we’re talking about a very small number of cases.”
Diminishing Conant
Jerzak had invited Deputy AG Mary Agnes Matyszewski, to explain the meaning of the U.S. Supreme Court’s recent decision not to review the Conant v. Walters case. “One thing I want to make you aware of,” said Matyszewski, “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 started to ask, “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.”

Dr. Bearman Silenced
The public comment session began and David Bearman’s name was called. [See related story]
No sooner had Bearman handed 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.
Wender: 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 MBC counsel Nancy Vedera 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...
Vedera (cutting in): 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.
Vedera: 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.
Vedera: You’re talking about an investigation.
Bearman: No, I’m talking about the Board’s staff, and I’m sorry if that upsets you. [Bearman was actually referring to a statement by Attorney General Lockyer’s spokesperson Hallye Jordan.]
Wender 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
During the public comment session I attempted to correct the record regarding the Conant ruling. “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,” I concluded.
To Jerzak, I said, “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 with California physicians in general in terms of safety and caring for patients
“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.”
Graham Boyd, the lead lawyer for the plaintiffs in Conant v. McCaffrey, soon confirmed my 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 Medical Board was misinformed.

The Guidelines That Weren’t
At the January 2004 meeting a working group of Medical Board and California Medical Association representatives was expected to present “practice guidelines” drafted in response to a formal CMA request.
But Joan Jerzak announced that the task force’s “dialog has raised several issues that need to be resolved before we can finalize the final draft. We are also aware that a medical marijuana task force is in place in another section of the Attorney General’s office. We believe it is critical that any draft that we develop at MBC be shared with the AG’s office, and we want to be able to have a monitoring of that other task force.”
Board member Linda Lucks said, “I’m very disappointed that we don’t have that document today for this committee to review. I wasn’t really aware that it was going to be circulated to the AG’s office. I really was expecting to have it on the agenda today, so I apologize to Board members and to the public who were expecting to have something to look at... We’ve been working on this, and working on this, and we came up with a draft document that I think is fair to all the parties... It’s just disappointing that we can’t at least look at it before it goes to the AG’s office.”
Jerzak then said, “We are monitoring what is happening in the other AG section. But our own HQE deputy was not involved with some of the early discussions —and we wanted to be able to include a representative from Health Quality Enforcement.” In other words, the working group suddenly needed input from not one but two other sources.
Lucks: “Nobody told me, and I was on the task force. That’s what I’m upset about... In good faith, it was supposed to be on the agenda. And it’s not. And there are people here from the public who are prepared to discuss it and I was prepared to proudly present a document for review and comments and suggestions and criticism... Sandra Bresler and Alice Mead [CMA representatives] and Ana Facio and Mary Agnes Matyszewski [Deputy AGs] all agreed on a document, and I was very proud of it....”
“I’m sure that we can get a document circulated before the May meeting,” said Jerzak. “It’s not ready at this point.”
Lucks, apparently not realizing that Jerzak had raised a second hurdle, said, “Well, our document is ready —the document that Alice Mead worked on is ready. It just hasn’t been vetted, I guess, by the AG’s office —or the task force from the AG’s office —isn’t that what you’re saying?”
Jerzak said no, she was “not sure it’s in a final stage,” citing “some concerns that were raised” about the absence of input from the Health Quality Enforcement unit.
Lucks said, “No one’s gotten back to me with any concerns that were raised. I thought it was a done deal.”
At this point committee chairman Ron Wender, MD, cut off the discussion.
Deputy Senior AG Ramirez was asked during a break about the AG’s medical marijuana task force refered to by Jerzak. He said he didn’t know who was on it or anything about it because he was stationed in Los Angeles... Three weeks later Dale Gieringer of Cal-NORML asked the Attorney General himself and reported that the only task force Lockyer knew about was the one headed by Vasconcellos, and they’d been dormant since last summer, when they met on SB-420.
It was apparent that some invisible hand had vetoed whatever practice guidelines the CMA-MBC working group had drafted as of January 2004.
Correcting the Record
I used the public comment session to restate the significance of the Conant v. Walters ruling. I distributed an information packet including a letter from Ann Brick, an ACLU attorney involved in the Conant case, confirming that the 9th Circuit “specifically held that [s] doctor’s anticipation of patient conduct, however, does not translate into aiding and abetting, or conspiracy.”
As I was addressing the Board, three lawyers seated behind me were observed shaking their heads and smiling condescendingly. Board member Steve Alexander (who, like Lucks, is a non-MD Gray Davis appointee) took notice and advised the staffers not to “smirk” when members of the public were testifying.
Alexander said that although he was “a product of the ’60s,” he had never smoked marijuana. He became aware of its medical properties when his father was dying of cancer.
Alexander protested the mysterious disappearance of cannabis from the agenda, which brought Ron Joseph, the Board’s Executive Director, hurrying up to the microphone to earnestly “accept personal responsibility,” for which he was thanked.
Gov. Schwarzenegger has since named Joseph to head another agency (a promotion). The Board’s former chief investigator, Dave Thornton, is the current executive director. My intention is for MedBoardWatch.com to monitor the Board’s actions and to make doctors and patients aware of their impact.
Doctors should not be afraid
Doctors should not be afraid to practice medicine.
The Board and numerous expert witnesses are now on record as saying that cannabis is good medicine for a wide range of illnesses.
As I go over transcripts of my colleagues’ hearings, I see that the degree of documentation of diagnosis and follow-up becomes the difference between dropping investigations and pursuing them.
In reviewing both my own standards, and those set forth in the Board’s July Action Report Statement, I realize what I have always known as a primary care physician: that the doctor who has the best documentation of a patient’s illness is their primary care doctor or their specialist. It is logical to conclude, therefore, that the vast majority of California practitioners should be confident about approving their patients’ cannabis use, or even recommending it to the uninitiated for whom it might be the most appropriate treatment.
Frank Lucido, MD, can be contacted at drfrank<AT>drlucido.com

 

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.