Key Medical Marijuana Decisions – Bearman v. Superior Court

Also see: Key Medical Marijuana Decisions by California Courts

Bearman v. Superior Court

Citation 117 Cal. App. 4th 463, 11 Cal. Rptr. 3d 644 (2004)
PDF of Full Opinion https://www.canorml.org/legal/bearman.pdf
Fact Summary Physician provided Patient a letter approving Patient’s use of medical marijuana for symptoms of migraines and attention deficit disorder. Following an investigation (but not arrest) of Patient while visiting a recreation area, a park ranger sent a copy of Physician’s letter to the Medical Board of California and asked for “appropriate actions.” Afterwards, the Medical Board initiated an investigation and sought Patient’s medical records. After both Patient and Physician refused to provide the records, the Medical Board filed a petition to compel Physician’s compliance with the subpoena. The trial court found there were sufficient grounds to support the investigation and the subpoena because Physician’s letter appeared to prescribe marijuana for the treatment of attention deficit disorder, which is not one of the illnesses listed in section the Compassionate Use Act (“CUA”). On appeal, the Medical Board also argued that Patient also waived his right to privacy by voluntarily showing the park rangers Physician’s letter.
Summary Rule of Law Neither the mere suspicion of unethical conduct based solely on the fact that a physician approves or recommends marijuana nor the fact that a physician approves or recommends marijuana for an illness not listed in the CUA provides the Medical Board good cause to subpoena patient records. A patient does not waive their right to privacy by voluntarily presenting a physician’s recommendation to use marijuana to law enforcement. By passing the CUA, the voters intended to facilitate the medical use of marijuana and interpreting the CUA as necessitating the waiver to enjoy its protection would hinder rather facilitate the voters’ intent.
Facts & Procedure Following an office visit, Physician provided Patient a letter approving Patient’s use of medical marijuana for “symptoms of migraines and [attention deficit disorder].” 117 Cal. App. 4th at 467 (alteration in original). Following an investigation (but not arrest) of Patient while visiting a recreation area, a park ranger “sent a copy of Physician’s letter to the [Medical Board of California] and asked for ‘appropriate actions.’” Id. at 467−68. The ranger stated that he believed Physician’s approval “‘may exceed his scope of practice, violate medical ethics, and be objectionable to California law.’” Id. at 471. Afterwards, “the Medical Board sent [Patient] a letter stating it was reviewing the quality of care provided by [Physician] and asking for permission to release his medical records.” Id. at 468. “[Patient] refused, stating it would violate his right of privacy.” Id. “The Board then subpoenaed the records from [Physician].” Id. “[Physician] refused to comply, stating that to release [Patient’s] records against his patient’s wishes would be a breach of physician-patient confidentiality and that the Medical Board had not shown good cause for invading such confidentiality.” Id. The Medical Board then filed a petition to compel Physician’s compliance with the subpoena. Id. “The court found there were sufficient grounds to support the investigation and the subpoena because [Physician’s] letter appeared to prescribe marijuana for the treatment of attention deficit disorder, which is not one of the illnesses listed in section [the CUA].” Id. On appeal, the Medical Board also argued that Patient waived his right to privacy “by voluntarily showing the park rangers [Physician’s] letter”. Id. at 473.
Issues 1. Does the suspicion of unethical conduct based solely on the fact that a physician approves or recommends marijuana provide the Medical Board have good cause to subpoena patient records?

2. Does the fact that a physician approves or recommends marijuana for an illness not listed in the CUA provide the Medical Board have good cause to subpoena patient records?

3. Does a patient waive their right to privacy and make their medical records discoverable by voluntarily presenting a physician’s recommendation to use marijuana to law enforcement?

Holdings 1. The suspicion of unethical conduct based solely on the fact that a physician approves or recommends marijuana does not provide the Medical Board good cause to subpoena patient records. See 117 Cal. App. 4th at 471. To subpoena patient records, “the Medical Board must demonstrate through competent evidence that the particular records it seeks are relevant and material to its inquiry sufficient for a trial court to independently make a finding of good cause to order the materials disclosed.” Id. at 469 (citations omitted). In Wood v. Superior Court, a case involving suspected physician over-prescription of controlled substances, the Court of Appeal “held the trial court erred in ordering compliance with [Medical Board] subpoenas” after finding the Board only presented “‘the conclusions of board personnel that they are suspicious but no mediating facts revealing why the conclusion is warranted.’” Id. (citing 166 Cal. App. 3d 1138, 1141−43, 1150 (1985)). Similarly, here, “[t]he statements regarding [Physician’s] possible unethical conduct made by [the ranger and the Medical Board] are nothing more than speculations, unsupported suspicions, and conclusory statements drawn solely from [Physician’s] letter to [Patient] and the simple fact he recommended the use of marijuana.” Id. at 471.

2. The fact that a physician approves or recommends marijuana for an illness not listed in the CUA does not provide the Medical Board good cause to subpoena patient records. 117 Cal. App. 4th at 471. By contending that “it showed good cause because [Physician] recommended marijuana for attention deficit disorder, which is not a listed illness in [the CUA]”, the Medical Board clearly misread the CUA. Id. The CUA “does not limit the use of marijuana to the listed illnesses.” Id. In addition to specifically enumerated illnesses, the CUA applies to “‘any other illness for which marijuana provides relief.’” Id. (quoting the CUA).

3. A patient does not waive their right to privacy and make their medical records discoverable by voluntarily presenting a physician’s recommendation to use marijuana to law enforcement. 117 Cal. App. 4th at 473. “The Medical Board correctly observes that the filing of a lawsuit may be deemed a waiver of privacy as to matters embraced by the action.” Id. However, “[t]his is not a case where [Patient] voluntarily initiated an action placing his medical records at issue.” Id. “Instead, [Patient] produced [Physician’s] letter as evidence that he qualified for the protection against criminal prosecution for possession of marijuana given to him by [the CUA].” Id. Moreover, it would defeat the voters’ intent “to adopt the Medical Board’s position . . . .” Id. at 474. “By passing [the CUA], the voters intended to facilitate the medical use of marijuana for the seriously ill.” Id. “Interpreting [the CUA] as necessitating the waiver of a fundamental right in order to enjoy its protection would . . . hinder rather facilitate the voters’ intent.” Id. The Medical Board’s argument “taken to its logical conclusion, [would mean] anytime a patient presents a physician’s drug prescription as proof that he or she is entitled to the drug, the patient would be in danger of waiving the right of privacy in his or her medical records.” Id. at n.5.

Discussion Bearman obviously provides an important validation of patient rights as it relates to medical marijuana and the decision goes a long way in preventing law enforcement from second-guessing a physician’s decision to recommend medical marijuana. However, Bearman does not necessarily prevent law enforcement from second-guessing a patient’s decision to use medical marijuana. It is important to recognize that Berman arose in the context of a Medical Board administrative proceeding against a physician, not a criminal proceeding against a patient. In other words, the Berman primarily affords protections to physicians and does not change the previous decisions holding that the CUA only provides patients a limited immunity from prosecution. To quote a ballot argument cited in many of the prior court decisions, after Bearman:

“‘Police officers can still arrest anyone for marijuana offenses.’” People v. Mower, 28 Cal. 4th 457, 469 (2002) (citing California Ballot Pamphlet: General Election November 5, 1996 at 61 (1996)).

On that note, even Bearman’s heavy emphasis on patient privacy only goes so far. While Bearman protects patient medical records when the Medical Board investigates a physician, a patient or primary caregiver arrested and charged with a marijuana criminal offense will almost certainly have to share patient medical records to prove his or her status as a qualified patient or primary caregiver by possessing marijuana “reasonably related to the patient’s current medical needs.” See People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997) (emphasis added).

Quotable Excerpts The declarations included no facts 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.

Bearman v. Superior Court, 117 Cal. App. 4th 463, 471, 11 Cal. Rptr. 3d 644, 650 (2004) (emphasis in original).

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 statements drawn solely from Dr. Bearman’s letter to Nathan and the simple fact he recommended the use of marijuana. While the Medical Board may want assurance Dr. Bearman was not violating the law or providing negligent treatment, that goal, even when accompanied by suspicion, is not enough to invade a patient’s right of privacy unless there are facts from which to make an independent showing of good cause. (See Wood, supra, 166 Cal.App.3d at pp. 1149–1150, 212 Cal.Rptr. 811; Gherardini, supra, 93 Cal.App.3d at pp. 680–681, 156 Cal.Rptr. 55.) Those facts are simply missing in this case.

Bearman v. Superior Court, 117 Cal. App. 4th 463, 471, 11 Cal. Rptr. 3d 644, 650 (2004).

The Medical Board further contends it showed good cause because 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. (See § 11362.5, subd. (b)(1)(A) [“or any other illness for which marijuana provides relief”].)

Bearman v. Superior Court, 117 Cal. App. 4th 463, 471, 11 Cal. Rptr. 3d 644, 650 (2004).

As the provisions of section 11362.5 quoted above make clear, its purpose is to give patients’ “the right to obtain and use marijuana for medical purposes,” subject only to the requirement of a physician’s recommendation, and to exempt both patients and caregivers from criminal prosecution or other penalties. (§ 11362.5, subds. (b)(1)(A) & (B), (c), (d).)

Bearman v. Superior Court, 117 Cal. App. 4th 463, 473, 11 Cal. Rptr. 3d 644, 651 (2004).

Recognizing this purpose, our Supreme Court recently held that section 11362.5 grants a person limited immunity from prosecution by rendering noncriminal possession or cultivation of marijuana if that person demonstrates his status as a qualified patient. (People v. Mower (2002) 28 Cal.4th 457, 464, 122 Cal.Rptr.2d 326, 49 P.3d 1067.)

Bearman v. Superior Court, 117 Cal. App. 4th 463, 473, 11 Cal. Rptr. 3d 644, 652 (2004).

Nowhere in the provisions of section 11362.5 is there any indication that, by demonstrating entitlement to the statute’s protection, a person forgoes or waives any right, much less the “inalienable” right of privacy expressly guaranteed by the California Constitution (Cal. Const., art. I, § 1).

Bearman v. Superior Court, 117 Cal. App. 4th 463, 474, 11 Cal. Rptr. 3d 644, 652 (2004).

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.

Bearman v. Superior Court,117 Cal. App. 4th 463, 474, 11 Cal. Rptr. 3d 644, 652 (2004) (emphasis in original).

Interpreting section 11362.5 as necessitating the waiver of a fundamental right in order to enjoy its protection would, we believe, hinder rather facilitate the voters’ intent. We decline to interpret section 11362.5 in such a manner.

Bearman v. Superior Court, 117 Cal. App. 4th 463, 474, 11 Cal. Rptr. 3d 644, 652 (2004).

If the Medical Board’s argument is taken to its logical conclusion, then anytime a patient presents a physician’s drug prescription as proof that he or she is entitled to the drug, the patient would be in danger of waiving the right of privacy in his or her medical records.

Bearman v. Superior Court, 117 Cal. App. 4th 463, 474 n.5, 11 Cal. Rptr. 3d 644, 652 n.5 (2004).

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