SAN JOSE POLICE SCAN POT FILES

Patients, Doctors Protest Probe Of Cannabis Center

San Jose police are going through patients' files seized this week from the
county's only medical marijuana clinic and calling doctors to determine
whether the drug was indeed recommended for their patients.

The seizure of the confidential records from the Santa Clara County Medical
Cannabis Center and the telephone calls to doctors listed in the files have
raised concerns among AIDS patients who fear being identified. Physicians
also say they worry about losing their federal licenses to prescribe drugs.

``What are they doing with our files?'' said one distraught patient, who
declined to give his name. ``Are we facing retaliation now? Will we face
surveillance? They have my address now, and my phone number, and
information about my illness.''

The man was one of many patients who gathered in protest at the year-old
Cannabis Center yesterday.

Police raided the center Monday and arrested executive director and
Cannabis Center co-founder Peter Baez, charging him with selling marijuana
to a patient without a valid physician's recommendation.

Baez disputes the charges, contending that three center workers had
received an oral recommendation from the patient's doctor.

Although the center was not closed Monday, police seized all patient files
and then returned copies of the files to center workers.

Baez complained yesterday that receipts were not provided for all of the
seized files, and that portions of some files that have been returned are
missing.

According to Baez, between 150 and 175 patients have told him they plan to
file a class-action lawsuit charging the San Jose Police Department with
violating the confidentiality of their medical records. Baez said he would
join the suit, as his personal medical files were also taken.

Police and officials from the Santa Clara County district attorney's office
confirmed that police investigators are looking through the approximately
270 client files seized from the center Monday and are calling doctors to
ask for confirmation of clients' illnesses, as well as to discover whether
they recommended marijuana use.

Deputy District Attorney Kristina Warcholski said yesterday that patients
should not be apprehensive about the fate of their files. ``We would like
the AIDS community to know that we are not interested in disseminating
information about anyone's medical history,'' she said. ``We are only
interested as to whether a violation of law concerning the dispensing of
medical marijuana took place.''

According to county health officer and AIDS physician Martin Fenstersheib,
the only ethical response a doctor could make to such a request is to say
that patient information is confidential. That is the response police have
gotten after calling his clinic this week, Fenstersheib said. ``Our No. 1
concern is that of patient confidentiality,'' Fenstersheib said. ``We have
to maintain the confidentiality of the doctor-patient relationship, and the
patient has to agree to the release of any information. ``In addition,
physicians are going to question who is on the other end of the phone,'' he
said. ``It could be anyone.''

Doctors are also fearful of the police calls because although state law
allows use of medical marijuana, the law is being challenged by the federal
government.

Marijuana use for any purpose is still illegal under federal law, and
physicians must apply to the federal government to maintain their licenses
to prescribe drugs.

If doctors refuse to divulge the requested information, police will ask
patients to sign a release of their medical records, Warcholski said. And
if patients refuse to comply, ``We will try to otherwise determine whether
the person has a legitimate right to marijuana,'' she said.

This week's raid and arrest at the center came as a surprise to center
volunteers, who said the relationship between the center, the city and
local police has been unusually cooperative for the past year.

Baez and Jesse Garcia, the founders of the center, worked with city
officials to draft strict city rules governing the distribution of medical
marijuana after state voters approved Proposition 215, which legalized its
use. Center workers have successfully screened out not only five
prescription forgers but several federal agents who attempted to infiltrate
the operation.

Baez's arrest was shocking to clients and volunteers because he was
cooperating with the police investigation and also because he suffers from
colon cancer and had undergone surgery shortly before his arrest.

Baez and clients of the center are worried that the arrest and raid mean
that the support of city officials, which they once enjoyed, has evaporated.

``The government is getting between me and my doctor,'' said Don Altier, a
San Jose resident suffering from amyotrophic lateral sclerosis, also known
as Lou Gehrig's disease. ``No one should have access to my records without
my approval, and I'm going to tell my doctor not to release anything.''

Fenstersheib called the recent turn of events unfortunate. ``Things have
deteriorated now that the federal government is trying to close the medical
marijuana centers (in six California cities),'' he said. ``It's
particularly unfortunate because, at the bottom of this, it's the patients
who are going to suffer.''

Police spokesman Chris Moore said that police have no intention of stopping
the legitimate use of medical marijuana in San Jose. ``We are not denying
access to anyone,'' Moore said. ``We are doing our best as a city to make
sure it is done in an appropriate place and manner. But they've got to
follow the law, and we can't turn a blind eye to that.''

©1998 San Francisco Chronicle