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Bearman v. California Medical Board

August 26, 2009

DAVID BEARMAN, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA MEDICAL BOARD ET AL., DEFENDANTS AND RESPONDENTS.



(Ventura County Super. Ct. No. 1188642). Denise de Bellefeuille, Judge.

The opinion of the court was delivered by: Yegan, J.

CERTIFIED FOR PUBLICATION

"Public policy is a very unruly horse, and when you once get astride it you never know where it will carry you." (Appellate Judicial Opinions Leflar (1974) p. 35, quoting Richardson v. Mellish (1824) 2 Bing. 252.) California public policy allows for the use of marijuana to ease the suffering of people who are seriously ill. Unfortunately, some people who are not seriously ill will attempt to ride the "unruly horse" for a recreational high. There is room for abuse of the Marijuana Compassionate Use Act of 1996 (CUA). Here, a law enforcement officer encountered a "medical marijuana patient" who possessed marijuana and paraphernalia. He reasonably believed there might be abuse of the CUA because the doctor's letter, approving/recommending marijuana use, mentioned attention deficit disorder.*fn1

A person may come within the meaning of the CUA if he or she is "seriously ill." (See People v. Wright (2006) 40 Cal.4th 81, 94.) We do not disparage a person suffering from attention deficit disorder. We do not denigrate the symptoms of this syndrome. But, it is difficult to accept the premise that such a person is "seriously ill" within the meaning of the CUA. We would be surprised if the medical literature would support the notion that marijuana use increases a person's attention span or "provides relief" from attention deficit disorder. (Health & Saf. Code,§ 11362.5, subd. (b)(A).) What should the California Medical Board (Board) do if it reasonably believes there may be abuse of the CUA? Surely, it has the power and right to investigate. It should suffer no tort liability for attempting to do its job in this case.

David Bearman, M. D., appeals from a judgment of dismissal entered in favor of respondents, Board, Executive Director Ron Joseph, and Board Area Supervisor Laura Sweet, after the trial court sustained, without leave to amend, a demurrer to appellant's second amended complaint alleging violation of his federal civil rights. (42 U.S.C. § 1983.) We affirm because the action is barred by the doctrine of absolute immunity as to some defendants and qualified immunity as to other defendants. (Bradley v. Medical Board (1997) 56 Cal.App.4th 445, 454-460.)

Facts and Procedural History

This appeal arises from appellant's decision to approve/recommend medical marijuana. After the Court of Appeal quashed a subpoena issued by Board to review the patient's medical records (Bearman v. Superior Court (2004) 117 Cal.App.4th 463 (Bearman)) appellant sued, claiming that this appellate victory entitled him to money damages. Respondents demurred. In sustaining the demurrer, the trial court took judicial notice of the Bearman opinion which recites the following facts and history:

In March 2001, appellant gave a patient, Nathan, a letter approving/recommending the use of marijuana for medical purposes pursuant to the CUA. (§ 11362.5, subd. (b)(1)(A).)*fn2

In April 2001, Nathan was stopped by a park ranger. Nathan had marijuana and two glass pipes. He claimed that he was medically certified to use marijuana and produced appellant's letter. Thinking that appellant was possibly violating the law and medical ethics, the park ranger sent a copy of the letter to Board for investigation.

In May 2001, Board requested that Nathan consent to release of his medical records to review the quality of appellant's medical care. Nathan refused on privacy grounds. Board served appellant with an administrative subpoena to review the medical records. (Gov. Code, § 11181.) Appellant refused to produce the records claiming patient privacy and physician-patient confidentiality.

In July 2002, Board filed a petition in Los Angeles Superior Court to compel compliance with the subpoena. (Gov. Code, § 11187.) The superior court granted the petition, noting that appellant's letter approved/recommended marijuana for the treatment of attention deficit disorder, an illness not mentioned in the CUA.

Appellant filed a writ petition. The Court of Appeal said that the patient did not waive his privacy rights by showing the medical marijuana letter to the park ranger. The letter conclusionally mentioned attention deficit disorder. It also mentioned migraine headaches and the symptoms which presumably flowed therefrom. (Bearman, supra,117 Cal.App.4th at pp. 473-474.) The court concluded that Board failed to make a good cause showing for the production of medical records. It ordered the superior court to vacate its order enforcing the subpoena. (Ibid.)

The Complaint

On April 6, 2006, appellant sued for damages based on a claimed violation of the Federal Civil Rights Act. (42 U.S.C. ยง 1983.) The second amended complaint alleged that Board, Board Executive Director Ron Joseph, and Board Area Supervisor Laura Sweet, as a matter of custom and practice, brought "baseless subpoenas [and] unfounded administrative and disciplinary ...


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