Wednesday, November 08, 2006

Sailing Against the Wind for Good Cause


Dr. David Bearman ( left) with chronic pain patient.

David Bearman, M.D. has a long and illustrious background in the field of Drug Abuse Treatment and Prevention. As a result of his efforts, the California Healthcare Foundation allocated ten million dollars to several health entities located in Santa Barbara County for a county-wide medical data exchange system.

Dr. Bearman has been the Medical Director of Santa Barbara County Methadone Maintenance Clinic and Ventura County Opiate Detox Program and has taught course on substance abuse at UCSF, UCSB and SDSU. He has published articles on Medicaid managed care, drug abuse treatment and prevention and human sexuality. He has published in the Journal of Psychoactive Drugs and the The Harvard Review among others.

Dr. Bearman has directed several conferences, delivered numerous professional talks and has been an expert witness in over 275 civil criminal and family court cases.

Areas of Expertise:


Physiology and Symptomatology of Drugs, including of medicinal cannabis, sympathomimetics, depressants, opiates, inhalants


Urine Testing


Methadone Maintenance

Drug Detox

Chronic Pain

Drug Treatment Program Quality

Bearman v. Joseph with commentary by Dr. Bearman, attorney Weisberg, and Dr. Lucido

Comments of Seymour Weisberg, lead attorney for Dr. Bearman in Bearman v. Joseph: My comments on Bearman v. Superior Court (Joseph):
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 sholuld 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 th 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 to 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. Recently, another physician used our precedent to successfully refuse a subpoena of patient records.

Comments of David Bearman MD
1.Know your rights
2.have patients who know their rights
3.If it sounds unconstitutional it probably is
4.have friends who are atorneys who love the Constitution and are willing to fight for it,and will do their work pro bono or at a discount
5.Do not assume that the MBC is familiar with or knows the law
6.Practice good medicine
7.keep good records informed
9.Organize with other informed like minded physicians
10.We are obeying the law.the MBC is suspect
11.remember the CMA has a long list of transgressions by the MBC.We should see about working with them to expose and reform the MBC.

General Advice to Doctors by Frank Lucido MD
My advice to doctors who come under investigation for having recommended cannabis, when no patient or legal guardian has complained:
Obtain good legal counsel, and avoid turning over patients' medical records if at all legally possible.
Bearman v. Joseph affirms the sanctity of the doctor/patient relationship and a patient's Protected Health Information (PHI).

I see a series of 3 seminal decisions, that illustrate the sanctity of the doctor/patient relationship and a patient's Protected Health Information (PHI):

1. Dr Michael Alcalay had records subpoenaed, turned them over, and went in for his "voluntary interview", and the investigation was dropped.

2. Dr. Frank Lucido had records records subpoenaed, turned them over, DECLINED THE VOLUNTARY INTERVIEW, and eventually had the investigation dropped.

3. Dr. David Bearman had records subpoenaed, DECLINED TO TURN THEM OVER, fought the subpoena, and won an important precedent for all doctors and patients.

peace and health,


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