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11/05/04 |
November 5, 2004 -- Statement
Reiterating the need for monitoring
Frank H. Lucido M.D.
Diplomate A.B.F.P.
2300 Durant Avenue
Berkeley, Ca, 94704
510-848-0958
fax 510-848-0961
November 5, 2004
Members of the Medical Board of California's Division of Medical Quality,
It is a pleasure to again be able to address you, in this, my 7th
consecutive appearance before your committee.
MEDICALBOARDWATCH.COM
As I said at your July 30th meeting, I am monitoring all cases that come
to my attention of doctors being investigated for having recommended
cannabis.
I will be posting all pertinent documents on my new website
MedicalBoardWatch.com (also MedBoardWatch.com) which went up in September.
My intention is to be of help to physicians in safely and appropriately
recommending medical cannabis.
All my previous statements to the Board, and the documents I have given
you can be found on my website.
Cannabis is a safe and effective medicine. The evidence of this, which I
have given you in previous appearances is also on my website.
I have also begun posting the relevant laws, and analyses of them.
In addition, I have posted the Medical Board's
May 7, 2004 statement
"California Physicians and Medical Marijuana", as well as my own published
standards "Implementation of the Compassionate Use Act in a Family Medical
Practice: 7 Years Experience". These 2 documents compare quite favorably
to each other, and are both a higher than the average standard for the
practice of the limited medical-legal consultation which is characterized
by the typical medical cannabis evaluation.
I hope for this site to be of use for physicians and attorneys in
general. In addition, the Medical Board and the Board's medical experts
should also apprise themselves of this knowledge, as it is clear from
reading their depositions, that they are quite deficient in this
knowledge.
INAPPROPRIATE INVESTIGATIONS:
As I review these cases, I see the same pattern:
None of these cases were initiated by a patient or legal guardian.
These cases have almost all been initiated by law enforcement.
Mr. David Thornton, at the May, 2003 DMQ meeting, denied this, listing
several categories (all of which were law enforcement) and then said; "and
maybe a parent".
The only parent I have heard about was the parent of an adult!
LAW ENFORCEMENT'S INSTITUTIONAL BIAS:
I also need to remind the Board of the well-documented institutional bias
of law enforcement to cannabis. I checked again at midnite, and the
California Narcotic Officer's Association website (http://www.cnoa.org/position-papers-1.htm)
still has the following untruth: "There is no justification for using
marijuana as a medicine." This lie is thoroughly contradicted by the
federal government's own 1999 Institute of Medicine report.
http://books.nap.edu/books/0309071550/html/137.html
THE RANGE OF ACCEPTABLE STANDARDS
As I mentioned, my standards compare quite favorably to the Medical
Board's May statement. Both of these are quite higher than is actually
generally practiced in California. This is arguably much safer for both
patient and physician, although perhaps more costly to the patient, as
they involve not only appropriate patient concerns, but the old "CYA"
(Cover you're A..) that has driven costs of medicine up drastically in the
past 30 years of my medical career. (Incidentally, the inappropriate
Board investigations and undercover police investigations, with police
posing as legitimate patients, have not only contributed to rising costs,
but have also caused tremendous damage to the trusted doctor-patient
relationship.)
THE LIMITED MEDICAL-LEGAL CONSULTATION MODEL
Your legal staff and medical experts
have very limited knowledge of the safety and effectiveness of medicinal
cannabis and seem to be unaware of the limited medical-legal consultation
model wherein a doctor is consulted to give an opinion on a very narrow
question, in this case: "Is medical cannabis appropriate for this patient
under the law?
Other examples of the limited medical-legal consultation is the DMV exam,
the Aviation Medical Examiner physical, or the camp or sports physical
(all of which I have performed), wherein the doctors assumes no primary
care (and often does not practice primary care), but is merely making a
medical-legal decision of approving a patient's driving a car, flying a
plane, or participating in camping or sports activities. Then there is
the case of the insurance company doctor, who merely decides if a patient
is insurable or not, and often never sees the patient. And of course,
there's the doctor who's name is on the order for flu shots at shot
clinics, who isn't even present when they are given. These are all valid
physicians in California.
MBC LEGAL STAFF AND MEDICAL EXPERTS IN NEED OF EDUCATION
Your legal staff ignores the substantial difference between prescribing
and recommending.
This completely ignores Conant v Walters (and Conant v. McCaffrey).
I want to point out that the California Medical Association, which was
represented on the MBC's medical cannabis "working group", did not concur
with your May 5th statement. Specifically, they state: "CMA does not
concur with the Board's conclusion that the accepted practice standards
for recommending or approving medicinal cannabis should be those
applicable to "prescription drug treatment". (page 5 of CMA On-Call; The
California Medical Association document #1315; June, 2004)
Your legal staff still ignores Bearman v. Joseph.
I have some comments on the Bearman decision from the Dr. Bearman's
attorney, Seymour Weisberg:
Comments on Bearman v. Superior Court (Joseph) by Seymour Weisberg
"Medical Board subpoenas should be resisted unless the patient has waived
privacy. The administrative subpoena can't be enforced until the Board
goes to Superior Court and convinces a judge that good cause has been
shown to override the patient's constitutional right to privacy. A letter
from the physician to the Board explaining why s/he won't turn over
medical records that the patient does not want to disclose should be
included, and in Dave's case was included, in the Board's Petition to the
Superior Court to enforce the subpoena. The patient must be notified of
the Petition and the patient has a right to appear and contest the
subpoena, although the physician can also assert the patient's rights. In
short, a physician should not turn over an objecting patient's records
without, at least, an order from a Superior Court judge.
Dave Bearman took it to the next level when the Superior Court judge
ordered him to comply with the subpoena. Acting upon the advice of his
attorneys that the judge was wrong and her ruling was contrary to clearly
established legal precedent, Dave incurred the expense of going to the
Court of Appeal where he was vindicated, but not before the Board
attempted to get the state Supreme Court to either reverse the Court of
Appeal's decision or order that it not be published. It is published:
117 Cal.App.4th 463.
Dr. Bearman's case should also be cited to resist subpoenas for
medical records issued by the prosecution in criminal cases against a
patient unless the patient consents to the disclosure."
Again, I call upon the members of the Medical Board of California to cease
the inappropriate investigation of physicians for having recommended
cannabis, and try to regain the credibility that this has cost you. You
have more important work to do in protecting California patients from
actual harm.
WE ALL NEED MORE EDUCATION, INCLUDING MYSELF
Not only will your legal staff and medical experts more knowledge about
medical cannabis consultation practice, but I also will have to learn more
about how the board works, and under what rules.
In my work in reviewing cases of
doctors being investigated, I will need your cooperation. I will need
access to all available documents that the medical board possesses or uses
to define standards of care.
Specifically, I will need the MBC's definitions of "simple" and "extreme"
departures.
I suspect the definition will show it is a subjective decision, rather
than anything objective, and will therefore be dependent on the bias,
and/or experience, or inexperience, of the MBC expert witness, rather than
dependent on any analysis of how medicine is actually practiced in
California, and as I have already asserted, many of the doctors most
knowledgeable about medical cannabis have been inappropriately
investigated.
I thank you for your attention.
Sincerely,
Frank H. Lucido MD
Attachments (2):
CMA On-Call document #1315
Implementation of the Compassionate Use Act in a Family Medical Practice
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