Four doctors were named in a complaint to the state medical board earlier this year by the San Diego district attorney’s office in connection with cannabis consultations. The number of doctors investigated by the board for approving cannabis use now stands at 20. Not one of the complaints has come from a bona fide patient.
“SDPD used undercover officers to talk to several doctors and obtain open-ended marijuana recommendations based upon self-reported, vague complaints of ailments,” according to a statement issued by the DA at a July 6 press conference (held jointly with the U.S. attorney). That evening Deputy DA Dana Greisen elaborated to Channel 10 News: “The doctors, because they’re giving it to so many people, are basically legalizing marijuana one doctor and patient at a time… It’s being recommended for insomnia, depression, anxiety… The law is being abused on a massive scale.”
Contrary to the DA’s claim, the law created by Prop 215 in 1996 is being implemented on a very limited scale, given how many Californians are taking corporate antidepressants for which cannabis could be substituted if their doctors were willing to recommend it. The doctors are constrained by lack of training (U.S. medical schools are only just beginning to acknowledge the cannabinoid receptor system) and fear. Every medical board investigation of a pro-cannabis doctor keeps fear alive.
Most outspoken of the San Diego 4 is Jimenez, 43, who grew up in Torrance. He conducts cannabis consultations on the island of Oahu, where he runs a family-practice clinic, as well as in Southern California. The board has subpoenaed two of his patients’ records, one of which he refused to provide after getting a tip that the patient was actually a DEA agent.
“A woman in her 40s presented herself as K.S. back in May 2005,” Jimenez recounts. “She visited with a caregiver. She said she had a diagnosis of chronic insomnia and had been prescribed Lunesta.” Jimenez approved her use of cannabis for six months and requested that she provide confirmation of the diagnosis.
“About a month later I got a call from a dispensary saying, ‘You know that woman that you gave a recommendation for, K.S.? Well, that’s really K.H.’ She had shown her badge when she busted them! Sure enough, several months later I’m on the news, the DA of San Diego and the U.S. attorney are smearing my name all over Southern California.” Jimenez says, “I had no problem sending them one patient’s record as an example of how I do things in my practice. But the second one involved a person whose intention was to do harm. The chart has a name on it that’s not that person’s real name.”
Jiminez describes an unsatisfactory meeting with medical board investigator Nancy Edwards:”I told her I’d be happy to go in front of the board and explain my thinking. She said she was going to fine me a thousand dollars a day for each day I didn’t send the record. I said, ‘You can fine me a million dollars a day, I could care less. But if you continue, I will sue you for slander.” He is represented by Bruce Margolin, an L.A. defense specialist.
Jiminez expects the board to find no fault with the chart he provided them. (The patient has a 37-year history of chronic pain.) He defends his treatment of patient K.S., who did not bring any medical records to show that she had been diagnosed with chronic insomnia. “We know that 40-60% of Californians don’t have adequate medical insurance. We also know that it’s very difficult to obtain medical records, especially from an HMO. It can take months and cost money -some offices charge a dollar a page.” As for not physically examining K.S., Jimenez says, “When someone comes in complaining of chronic insomnia, you’re not going to do labs and a full exam. You ask them questions. You observe them. You try to find out what anxieties are keeping them awake.”
The real-world standard of practice has little to do with the textbook standard, says Jimenez. He once attended a conference on insomnia at Stanford at which an authority in the field described prescribing Ambien for up to two years -although the label advises a maximum of six weeks. “They don’t have any effective drugs for chronic insomnia,” says Jimenez. “Ambien is a very dangerous drug, known to cause bizarre sleepwalking episodes.”
Jimenez and the other doctors about whom the San Diego District Attorney complained will not -cannot, legally- be accused of approving cannabis in the treatment of depression and insomnia, even though that’s what galls the DA, by her own admission. The board will have to come up with a technical reason -a flaw in the history, or the examination, or the treatment plan, or the provision of informed consent, or, likeliest of all, record keeping. Attorneys for the medical board base their definition of a “good faith” examination on a 1983 case, Douglass v. Board of Medical Quality Assurance (as the MBC was then called). The Superior Court based its ruling in Douglass on a section of the Business and Professions Code that states: “Prescribing, dispensing, or furnishing dangerous drugs as defined in section 4022 without a good-faith prior examination … constitutes unprofessional conduct.”
“Philip A. Denney, MD, observes that “cannabis consultants neither prescribe, dispense, nor furnish” cannabis, and that the Douglass precedent is therefore inapplicable. “I would argue that Douglass has absolutely no bearing on discussing the medical use of cannabis with a patient,” says Denney.
The board’s expert witness in Douglass opined that a physician should spend 20-30 minutes personally examining a patient on his or her initial visit, and that the exam should include, among many other specified procedures, “a rectal examination and a pelvic examination for women and prostate examination for men.”
Denney comments, “This is not the real world. It’s not clear how this opinion of a single board consultant has led to the definition of what a ‘good faith prior examination’ means. If, in fact, not doing one on the patient’s initial visit constitutes negligence, then 99 percent of the doctors in California could be accused. Been to Kaiser lately?”
FRED GARDNER is a former Public Information Officer for the District Attorney of San Francisco. He can be reached at firstname.lastname@example.org