C.A. REJECTS SUBPOENA FOR MEDICAL MARIJUANA RECORDS

The Medical Board of California must present more than "speculations,
unsupported suspicions, and conclusory statements" to justify
subpoenaing patient records from a doctor suspected of
indiscriminately prescribing marijuana, this district's Court of
Appeal ruled yesterday.

Justice Laurence D. Rubin of Div. Eight said Los Angeles Superior
Court Judge Dzintra Janavs erred in ordering Dr. David Louis Bearman
to comply with an administrative subpoena seeking records of his
treatment of a patient identified by the court only as "Nathan."

The board sought the records after park rangers found marijuana and
smoking pipes in Nathan's possession at the Lake Piru Recreation Area.
Nathan presented Bearman's letter stating he was medically certified
to use marijuana to control his migraine headaches.

The rangers did not arrest him, but forwarded a copy of the letter to
the Medical Board with a request for "appropriate action." The board
at first sought the records from Nathan, but he declined to provide
them.

When Bearman also declined, citing Nathan's confidentiality rights,
the board petitioned Janavs for an order compelling compliance.

While a declaration submitted by the board's consultant described the
information provided by the rangers as "a complaint--indicating
that--Bearman--potentially prescribed the medical usage of marijuana--as
a legal remedy rather than a medical necessity," it included "no facts
even suggesting Dr. Bearman was negligent in Nathans' treatment,"
Rubin declared.

"When the Medical Board seeks judicial enforcement of a subpoena for a
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," the justice explained.

Rubin rejected the board's contention that it had good cause to seek
the records since Bearman indicated he was prescribing the drug for
attention deficit disorder as well as for headaches. ADD is not among
the illnesses listed in the medical marijuana statute, Health and
Safety Code Sec. 11362.5.

Though the doctor's letter said Nathan had told him marijuana relieved
his ADD symptoms, it did not indicate the drug was being prescribed
for that reason, Rubin said. Nor, he explained, is the list of
illnesses for which marijuana may be prescribed contained in Sec.
11362.5 intended to be exhaustive.

The subpoena was also too broad, since it requested all of Nathan's
records, not just those relating to the migraine headaches for which
the drug was prescribed, Rubin said.

The justice also rejected the board's argument that by showing the
letter to the rangers, Nathan waived his right to privacy.

He wrote:

"[W]e would be defeating the voters' intent behind section 11362.5 if
we were to adopt the Medical Board's position that a person
automatically waives the right of privacy in their medical records by
virtue of showing a peace officer a physician's written recommendation
for the medicinal use of marijuana. 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."

The case is Bearman v. Superior Court (Joseph), B169276.