PRIVACY WINS IN BEARMAN CASE

David Bearman, MD, a Santa Barbara doctor who refused to turn over a
patient's file subpoenaed by the state Medical Board, has been vindicated.
On April 1 a state appellate court ruled that the subpoena should never
have been issued because the Board "failed to demonstrate sufficient facts
to support a finding of good cause to invade the patient's right of privacy."

Says Bearman, "This is a message to the Medical Board staff that they
cannot go on fishing expeditions. It's more than a victory for Prop 215,
it's a victory for civil liberties."

Bearman's lawyers doubt the Medical Board will appeal to the state supreme
court.

The saga began in April 2001 when Bearman's patient, N., a 21-year old
migraine sufferer (who also had been diagnosed with depression and ADD),
went camping with three friends in the Lake Piru Recreation Area. A search
of their vehicle by Forest Ranger James Just turned up a small quantity of
cannabis. N. claimed ownership and showed Ranger Just a letter from Dr.
Bearman authorizing him to medicate with cannabis. Just photocopied the
letter, in which Bearman had written:

"You reported to me that using marijuana relieves your medical symptoms of
migraines and ADD. I have evaluated the medical risks and benefits of
cannabis use with you as a treatment pursuant to Health and Safety Code
section 11362.5. I recommend/approve of your use of cannabis for relief of
pain and nausea of migraines and decreasing the frequency and intensity."

Ranger Just then wrote to the Medical Board opining that Dr. Bearman's
letter of approval for N. "may exceed his scope of practice, violate
medical ethics, and be objectionable to California law." Just asked the
Board to take "appropriate actions." The Board -which investigates about
2,000 of the 12,000 complaints it receives annually-decided to pursue
Ranger Just's suspicions of Dr. Bearman. They assigned Senior Investigator
Linda Foster and Randolph Noble, MD, to determine whether Bearman had been
guilty of "gross negligence... incompetence, or... dishonesty or
corruption" in his treatment of N.

Noble, the Board's expert, wrote a declaration revealing profound
misunderstanding of Prop 215: "Review of the Medical Marijuana statute
(section 11362.5) reveals that marijuana can be used for seriously ill
Californians and is to be recommended by a physician who is a primary
caregiver and the indications include migraine headaches, however, there is
no mention of attention deficit disorder." In fact, the law allows
cannabis users to get approvals from doctors who are not their primary-care
providers, and to treat any condition for which cannabis provides relief.

Bearman, who is 63 and has always been in good standing
professionally, says he learned he was under investigation when he got a
phone call from N. in September 2001. "He said he'd been contacted by the
Board and said he wasn't going to authorize the release of the records. He
just wanted to check that turning them down was the right thing to do. I
said that they were his records, and that they were private, and that it
was up to him. About a week later I got a certified letter from the Board
requesting N.'s records."

Bearman discussed his plight with State Sen. John Vasconcellos. Months
passed with no word from the Medical Board, and Bearman began to think that
Vasco had induced them to call off the investigation. Then he got another
certified letter requesting N.'s medical records. Bearman notified the
Board that he had a professional obligation to fight the subpoena. More
months passed and then, says Bearman, he got a letter "just like the one
before, as if we'd had no previous correspondence." Eventually (March
2003), after briefings and more briefings, the matter wound up in Superior
Court in Los Angeles where Judge Dzintra Janavs upheld the subpoena and
gave Bearman a month to appeal.

While Bearman was preparing his appeal, the Medical Board tried to get an
Administrative Law Judge to fine him $1,000 per day for not complying with
Judge Janavs's order. "My attorneys kept assuring me that we had a defense
against the fine," says Bearman. "It seemed so inequitable. I trusted them
and I trusted the justice system enough... My wife, I think, was more
concerned." If Bearman had not prevailed in the appellate court, the fine
could have totaled $115,000; but his victory makes the fine proceedings moot.

Bearman's appeal was heard by a three-judge panel from the Second Appellate
District. Briefs were submitted in September '03, including a 50-page
amicus brief on Bearman's behalf from the California Medical Association
(drafted by Catherine Hansen and Alice Mead). Bearman was represented by
Seymour Weisberg, Alison Adams, and Joseph Allen (the former district
attorney of Mendocino County). Attorney General Bill Lockyer assigned four
prosecutors to represent the Medical Board; Deputy AG Paul Ament did the
oral argument.

In October the appeals court issued an interim ruling that would have
quashed the subpoena unless the Medical Board chose to submit another
brief. The Board chose to submit another brief -your taxpayer dollars at
work- and another round of oral argument ensued on Jan. 27 '04.

The April 1 ruling was unanimous. Judge Laurence Rubin wrote the opinion,
stating: "When the Medical Board seeks judicial enforcement of a subpoena
for physician's medical records, it cannot delve into an area of
reasonably expected privacy simply because it wants assurance the law is
not violated or a doctor is not negligent in treatment of his or her
patient. Instead, the Medical Board must demonstrate through competent
evidence that the particular records it seeks are relevant and material to
its inquiry... This requirement is founded in the patient's right of
privacy guaranteed by Article I of the California constitution, which the
physician may, and in some cases must, assert on behalf of the patient."

The appellate court judges relied on several directly relevant precedent
cases. Their ruling amounts to a serious rebuke of the Medical Board. "The
declarations included no facts [italicized by the judge] 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. 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 statement drawn solely from Dr. Bearman's letter
to N. and the simple fact he recommended the use of marijuana."

Judge Rubin noticed that Bearman's letter only approved cannabis use for
the treatment of migraine. "The Medical Board further contends," wrote the
judge, "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."

Also on April 1 -the very day Dr. Leveque was supposed to be testifying to
Congress-he learned that the Oregon Medical Marijuana Program is denying
permits to about 500 of his patients whose paperwork had not been processed
at the time his license was suspended (March 4).