MEDICAL BOARD SHOULDN'T SEE HER PATIENTS' FILES, SAYS DR. FRY

Assemblywoman Hannah Beth Jackson and state Sen. John Vasconcellos are
calling for an audit of the Medical Board of California's Enforcement
Division to determine whether doctors who specialize in cannabis
consultations have been singled out for investigation. At least nine
of the 15 cannabis consultant MDs have been investigated -a costly,
time-consuming, stressful ordeal no matter what the outcome. None of
the complaints triggering the investigations came from patients;
almost all came from disgruntled law enforcement officers.

A typical medical board investigation consists of an armed "peace
officer" from the enforcement division obtaining patients' records for
review by a doctor hired by the Board to be an "expert witness." The
expert determines whether the doctor being investigated provided the
"accepted standard of care." Patients are almost never interviewed
about their interactions with the doctor or the outcome of the
treatment s/he recommended. It's all about the paperwork. (If it were
about the patients, none of the cannabis consultants would be in trouble.)

Last week Marian Fry, MD, appeared before Administrative Law Judge
Ruth Astle in Oakland to ask for dismissal of the Medical Board's case
against her on the grounds that her files had been obtained
improperly. Fry is represented by Lawrence Lichter.

The Attorney General's office, representing the Board, accuses Fry of
providing substandard care to five patients, and offering one of them
a seedling "Every patient I've been asked about by the medical board
has passed through the criminal justice system in either El Dorado or
Sacramento County," Fry says. "The complaints all came from district
attorneys, not the patients themselves."

The three patients with whom Fry is still in contact refused to
release their files to the Board, and she assumes the others would
have, too. Conveniently for the Board, the DEA had raided the home and
offices of Fry and her husband, attorney Dale Schafer, in September,
2001, confiscating 24 file cabinets containing 6,000 patients'
records. The Board acknowledges that it obtained Fry's records from
the DEA.

Lichter was able to site a section of the California penal code
listing the steps that have to be taken before law enforcement
agencies can share medical information. Fry's prosecutors, deputy AGs
NAME and NAME downplayed the significance of the statue, arguing that
"law enforcement agencies share information all the time," and that it
had been done "pursuant to statute." But the statute NAME cited was a
federal law authorizing the DEA to release information; it did not
authorize a state agency to receive it.

Judge Astle expressed her concern about medical records being obtained
without patients' consent, or a warrant, or a subpoena, or the
involvement of a judge. She requested more briefing on this point, and
continued the hearing on the motion to dismiss till October 1.

The prosecution case against Fry will get underway as scheduled Aug.
16 so DEA agent Brian Keefe, who was involved in the release of
records to the Med Board,.can testify before he gets reassigned. Then
the proceedings will go on hold until November 8.

Fry and Schafer will also be in federal court in October in connection
with the DEA's case against them for dealing. They had previously
asked Federal Judge William Alsup to call off the DEA as per his
injunction in the Conant case. Alsup refused, noting that Conant
hadn't been accused of sales.

Schafer has obtained through discovery a memo in which a DEA agent in
Bakersfield forwarded material from a patient's file to MBC
Investigator Tom Campbell in Sacramento. Schafer contends that the DEA
investigation of Fry violated the federal injunction issued in the
Conant v. McCaffrey case. "They deny it by saying they were
investigating for criminal activity, which is not protected by Conant,
but the date on the memo [from the Bakersfield agent] is before the
date they give for starting a criminal investigation."