DO Board Jimenez

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BEFORE THE

OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA

DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA

In the Matter of the First Amended Accusation

Against:

ALFONSO JIMENEZ, D.O.

420 K Street, #I3

San Diego, CA 92101

Osteopathic Physician & Surgeon's LicenseNo. 20A6499

FILED

MAR11 2099

osn-coplitTI-ocMEDICALBOARDOF CALIFORNIA

Respondent

DECISION

The attached Proposed Decision of the Administrative Law Judge is hereby

adopted by the Osteopathic Medical Board of California as its DeciSion in the above-

entitled matter.

This Decision shall become effective on a l2 /

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IT IS SO ORDERED -

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GERALD11)1E O'SHEA, D.O., PRESIDENTOSTEOPATFLIC MEDICAL BOARD OF CALIFORNIA

Case No. 09-2006-001760

0A1-1 No. 2007100333



In the Matter of the First Amended

Accusation Against:

ALFONSO JIMENEZ, D.O.420 K Street, #13

San Diego, CA 92101

BEFORE THE

OSTEOPATHIC MEDICAL BOARD OF CALIFORNIASTATE OF CALIFORNIA

Osteopathic Physician' and Surgeon'sCertificate No. 20A6499

Respondent.

PROPOSED DECISION

Case No. 09-2006-001760

OAH No. 2007100333

Administrative Law Judge Vallera J. Johnson, State o f California, Office ofAdministrative Hearings, heard this matter in San Diego, California on December 8, 9, 10,11, 12,and 15, 2008.

Martin G. Hagan, Deputy Attorney General, represented Complainant Donald J.Krpan, D.O., Executive Director, Osteopathic Medical Board of California.

Steven Schectman, Esq., Pacific Law Center, and Bruce Margolin, Esq., The LawOffices of Bruce Margolin, represented Respondent.

The matter was submitted on January 30, 2009.

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1 O v e r Complainant's objection, the Administrative Law Judge granted Respondent's request to reviewComplainant's Power Point Presentation and make a decision about filing a brief no later than January 7, 2009 torespond to the cases cited in Complainant's Closing Argument. Complainant filed a copy of the Power PointPresentation of Complainant's Closing Argument; it was marked Exhibit 37. By Memorandum, dated December 17,2008, marked Exhibit 38, Respondent notified the Administrative Law Judge that he would respond to Complainant.

On January 8, 2009, Respondent's Supplemental Closing Memorandum of Points and Authorities (ClosingMemorandum) was filed and marked Exhibit 39; the Closing Memorandum violated the Administrative LawJudge's Order and was therefore disregarded. Complainant's Post-Trial Brief was filed on January 14, 2009 andmarked Exhibit 40.

Complainant made a Request for Costs that was not adequately addressed during the hearing by eitherparty. By letter, dated January 13, 2009, the Administrative Law Judge ordered the parties to file a Memorandum of

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1. D o n a l d J. Krpan, D.O. (Complainant) filed Accusation and First Amended

Accusation, Case Number 09-2006-001760, dated September 17, 2007, and July 25, 2008respectively, in his official capacity as the Executive Director, Osteopathic Medical Board ofCalifornia (Osteopathic Medical Board) against Alfonso Jimenez, D.O. (Respondent).

Respondent filed a Notice of Defense, dated September 21, 2007, requesting aheating.

2, O n September 26, 1993, the Osteopathic Medical Board issued Osteopathic

Physician's and Surgeon's Certificate Number 20A6499 to Respondent. A t all timesrelevant herein, said Osteopathic Physician's and Surgeon's Certificate was in full force andeffect and will expire on May 31, 2009, unless renewed.

3. C o mp l a i n a n t alleged that Respondent's care and treatment of three patientswas below the standard of care and constituted gross negligence, repeated negligent acts,

incompetence, dishonesty or corruption, false representation and failure to maintain adequaterecords when he made medical marijuana recommendations for these patients; in addition,Complainant charged that Respondent made and disseminated false and/or misleading

advertising in that he represented himself as a "Qualified Medical Marijuana Examiner"and/or "Cannabis Specialist" on his websites, in his "Medical Marijuana Guide" and in

documents that he gave his patients or potential patients.

Respondent's Background

FACTUAL FINDINGS

4. Re spo nd en t is licensed to practice medicine in the States of California andHawaii.

He attended Michigan State University Osteopathic Medical School, completed a oneyear internship at the University of California - Los Angeles and thereafter worked in the

Indian Health Program for a year. Between 1994 and 1997, Respondent completed a three-

year rotating residency program at the University of Hawaii with an emphasis in familypractice, emergency room medicine and urgent care.

After completing his residency, Respondent was hired as a clinical professor by theUniversity of Hawaii and began working as a family practice physician in a clinic in EwaBeach. He opened a family practice clinic in 1996 that he continues to operate. In 2005,

Points and Authorities regarding the issue. On January 22, 2009, Complainant's Post-Trial Brief Re: RecoverableCosts was filed and marked Exhibit 41. Respondent did not file a response.

On January 30, 2009, the record was closed, and the matter was submitted.



(8,000) medical marijuana recommendations and anticipated that his clinic would write over

ten thousand (10,000) medical marijuana recommendations by the end of calendar year 2008.

6. D u r i n g 2005 and 2006, the San Diego Police Department (SDPD) and the San

Diego District Attorney's Office became aware of the proliferation of medical marijuanadispensaries that facilitated the sale o f marijuana to citizens who presented medical

marijuana recommendations issued by local physicians within San Diego County. Uponpreliminary investigation, i t was determined that the majority of these physicianrecommendations had been issued to patients who were under 30 years of age and/orreportedly had medical conditions such as insomnia, anxiety and depression. On ly

.approximately three percent (3%) of such recommendations were issued for more seriousmedical conditions, such as cancer, glaucoma and AIDS.

Based on the above preliminary investigative findings, the SDPD, in conjunction withthe San Diego District Attorney's Office, initiated an undercover investigation of several San

Diego physicians. These doctors were among those identified as issuing a significant

number of marijuana recommendations to young patients who appeared not to have seriousmedical conditions. Respondent was one of the physicians so identified. His business namewas listed as "Medical Marijuana of San Diego," located at 311 — 4

th A v e n u e , S a n

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California.

The Compassionate Use Act

7. O n November 5, 1996, the voters of California passed Proposition 215, theCompassionate Use Act of 1996, also known as the Medical Marijuana Initiative

(Compassionate Use Act), codified at Health and Safety Code section 11362.5, et seq.

The Compassionate Use Act provides that seriously i ll Californians have the right toobtain and use marijuana for medical purposes where that medical use is deemed appropriateand has been recommended by a physician who has determined that the person's healthwould benefit from the use of marijuana. This law makes provision for the treatment o f

cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other•illness for which marijuana provides relief. Also, the Compassionate Use Act affirms public

policy against conduct that endangers others or the diversion of marijuana for non-medicalpurposes. I t is left for the physician, as gatekeeper, to ensure that marijuana is used for"medical purposes" to benefit the seriously ill .3 Under these circumstances, it is presumed

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anticipated under the Act:

"The state law in question does not legalize use of marijuana by anyone who believes he has a medicalneed for it. Rather, state law is closely calibrated to exempt from regulation only patients who haveconsulted a physician. And the physician may only recommend marijuana when he has made anindividualized and bona fide determination that the patient is within the small group that may benefit fromits use.

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that physicians who recommend marijuana under the Compassionate Use Act will followaccepted medical practice standards and make good faith recommendations based on honest

medical judgments. (Conant v. McCaffrey {2000 WL 12811741)

8. O n October 5, 2003, the Governor signed Senate Bill 420 (S.B. 420) into law,

which established the Medical Marijuana Program (MMP).

4 T h e M M P s e e k s

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the Compassionate Use Act by clarifying the scope o f its application, facilitating the prompt

identification of qualified patients/caregivers and promoting uniform and consistentapplication of the Compassionate Use Act among the Counties across the State. In addition,S.B. 420 noted that the Compassionate Use Act was enacted "in order to allow seriously i ll

residents o f the state, who have the oral or written approval or recommendation of aphysician to use marijuana for medical purposes without fear of criminal liability."

5 I tefines a "serious medical condition" for the purposes o f marijuana recommendations as:AIDS, anorexia, arthritis, cachexia, cancer, chronic pain, glaucoma, migraine, persistentmuscle spasms including but not limited to multiple sclerosis, seizures including but not

limited to seizures associated with epilepsy, severe nausea, any other chronic or persistent

medical symptom that either: (a) substantially limits the ability of the person to conduct oneor more major life activities as defined in the American with Disabilities Act or (b) i f not

alleviated, may cause serious harm to the patient's safety or physical or mental health.

6There is no dispute that, in every case, a good faith recommendation must be based on

honest medical judgment. Where the parties differ is what constitutes accepted medicalpractice standards to be followed in making such a recommendation..

9. R e spo n d e n t argued that this case was politically motivated, directed byFederal and State government officials opposed to Proposition 215 and conducted from theoutset in bad faith. The Compassionate Use Act provides that no physician shall be

punished, or denied any right or privilege, for having recommended marijuana to a patientfor medical purposes;

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including threat of criminal prosecution, revocation of Dmg Enforcement Administration

registration and/or exclusion from participation in the Medicare and Medicaid program for

having made such recommendations. As a result, many physicians are reluctant to make

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If a doctor abuses this privilege by recommending marijuana without examining the patient, withoutconducting tests, without considering the patient's medical history or without following standard medicalprocedures, he will run afoul of state as well as federal law. But doctors who recommend medicalmarijuana to patients after complying with accepted medical procedures are not acting as drug dealers; they.are acting in their professional role in conformity with the standards of care of the state where they arelicensed to practice medicine."

Health and Safety Code, Sections 11362.7 —11362.83

http:www.leginfo.ca.govipub/03-04/billisenisb_0401-0450/sh2120_bill_20031012_chapteredhtmi

Health and Safety Code section 11362.5, subdivision (c)

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of law enforcement themselves.

Considering the facts in the foregoing paragraph, every effort has been made to focus

on determining the practice standards that govern medical marijuana recommendations andwhether Respondent violated the standard of care, the primary issue in this case. Therefore

evidence proffered on the history, motivation and any other matters underlying or relating tothe investigation and prosecution of this case, though considered, has been largelydisregarded.

Standard of Practice Issues

10. S i n c e enactment of the Compassionate Use Act, the Medical Board of

California (Medical Board) has issued statements to assist in defining the responsibilities o fphysicians who choose to recommend medical marijuana. I t is the same standard whichpertains to treatment or prescribing any other medication, to wit:

• h isto ry and good faith examination of the patient

• development of a treatment plan with objectives

• provi sion of informed consent including discussion of side effects

• periodic review of the treatment's efficacy

• consultation, as necessary

• proper record keeping that supports the decision to recommend the use ofmedical marijuana

The foregoing standard applies regardless of whether the physician is acting as a

treating or consulting physician. I f the doctor who is recommending medical marijuana isnot the primary care physician, then it is incumbent on him to consult with the patient'sprimary care physician or to obtain the appropriate medical records to confirm the patient'sunderlying diagnosis and prior treatment history.

The Medical Board will not take action against physicians who make medical

marijuana recommendations in accordance with the standards of medical responsibility.However, i f the Medical Board believes that the physician's conduct has not met the

applicable standard of care, the Medical Board may seek to impose disciplinary actionagainst the physician.

The California Medical Association's On-Call Document #1315, entitled "The

Compassionate Use Act of 1996: The Medical Marijuana Initiative" (CMA On-CallDocument #1315), discusses the questions most likely to be asked by physicians about thelaws and standards for medical marijuana recommendations.

11. Respondent argued that his standard of practice formedical marijuanarecommendations was based on his education, training and experience.

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In 2005, while practicing in Santa Barbara, Respondent had patients who were takingmedical marijuana for a variety o f conditions, including AIDS, depression and "dying." Hehimself obtained a recommendation for medical marijuana based on a diagnosis o f

"adjustment disorder with depressed mood;" Respondent testified that the physician whoprovided his recommendation did not perform a physical examination or review medical

records; and, in 2005, his daily use of marijuana had an "amazing impact on his li fe."

In 2006, when he opened his first medical marijuana clinic, Respondent had beenlicensed as a physician in the State of California more than 12 years. Before opening his

clinics, Respondent researched and educated himself on marijuana.

Respondent established that he is knowledgeable of the standard of care for Californiaphysicians who prescribe any medication or treatment, the potential risks associated withmedical marijuana use, Medical Board statements regarding making medical marijuanarecommendations and the CMA On-Call Document 111315. He testified that he made the

decision to "lower" the Medical Board's standard o f care because medical marijuana is safer

than the drugs his patients were taking.

12. Respondent viewed his role as medical marijuana consultant. As such, he felthe needed to obtain sufficient information to determine whether his patients had a condition

that qualified for treatment with medical marijuana and to educate his patients about its use.

For the initial recommendation, Respondent conducted face-to-face interviews,

obtained minimal information about the patients' conditions and made diagnoses; he reliedon the patient's representation about his/her medical condition and assumed that the patient's

treating physician had performed the appropriate medical evaluation and made the properdiagnosis. Further, his patients presented with chronic, not acute conditions. He did notreview medical records or consult with treating physicians in order to make the initialrecommendation; he arranged for follow-up visits and instructed patients to return with

medical records to confirm diagnoses. Respondent issued first recommendations for sixmonths, and in some instances, one year, without further monitoring.

Given the facts in the foregoing paragraphs, in Respondent's opinion, he obtained the

necessary history and performed a physical examination, i f necessary, but was not requiredto gather medical records or consult with primary care and/or treating physicians in order tomake medical marijuana recommendations.

Expert witnesses

13. J a m e s P. MacDonald, M.D. (Dr. MacDonald), testified as Complainant'sexpert witness.

He obtained his undergraduate and medical education at Harvard University; hecompleted a residency in family practice and a primary care sports medicine fellowship. Hehas been licensed in the State o f California since 1999 and in Massachusetts since 2007.

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Dr. MacDonald was board certified in family medicine in 2000 and re-certified in

2006. He is a fellow of the American Academy of Family Practice. Other relevantprofessional affiliations include the American Academy of Family Physicians and theCalifornia Academy of Family Physicians. On Dr. MacDonald's curriculum vitae, underpost-graduate, advanced medical training/licenses, relevant to this case, he lists Academic

Academy of Addiction Psychiatry Buprenorphine and Office-Based Treatment of Opioid

Dependence.8

Dr. MacDonald is employed by University of California, Santa Cruz (UCSC) Health

Center as a staff physician at the student health center and as the physician for UCSC athleticteams. His clinical duties include routine primary care on a continuing basis as well asmanagement of the health care center's urgent care facility.

Dr. MacDonald demonstrated that he understands the laws and the potential benefitsand consequences of making medical marijuana recommendations. Despite the fact that it isa highly political issue, Dr. MacDonald has recommended medicinal cannabis to four

seriously i ll patients for whom he provided primary care and treatment. In addition,marijuana is used recreationally frequently in his community and among his patients; as aresult, at least two to three times a year, he provides treatment for patients who have acute

side effects as a result of using the drug.

14. D r . MacDonald is familiar with the standard of practice for familypractitioners. In his opinion, the standard o f practice for recommending marijuana as atreatment modality is identical to that governing prescription of any treatment or medication—mainly, the physician takes a history and performs a physical examination, formulates a

differential diagnosis, discusses treatment options with the patient including therisks/benefits, effects/side effects o f medications, develops a treatment plan with provision

for future monitoring by the consultant or the primary care physician, obtains patient recordsand prepares and maintains adequate and accurate records o f the foregoing.

Dr. MacDonald's opinions are consistent with the 2004 Medical Board's Statement

and CMA On-Call Document #1315 (Finding 9) and confirms existing accepted medicalstandards for treatment or prescribing any medication.

In rendering his expert opinions in this case, Dr. MacDonald relied on the documents

marked and admitted as Exhibits 1 through 27 in this case. His testimony was clear, logical,well-reasoned and unbiased.

15. D r . MacDonald described the standard of care for making a medical marijuanarecommendation.

Dr. MacDonald took the necessary CME course and became DEA certified to use Buprenorphine in thecontext of office-based treatment of opioid dependence.

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Diego County Drug Abuse Advisory Committee, Chair, Health Subcommittee, SantaBarbara County Drug Abuse Treatment and Prevention Master Plan Committee; no evidencewas offered to establish when he served on any committee or the duration of his service.

Relevant to this case, Dr. Bearrnan testified that he has thirty (30) years experience in

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professor of substance abuse courses at the University of California - San Francisco,University of California —Santa Barbara and San Diego State University.

Dr. Bearman has been making medical marijuana recommendations since 2000;approximately twenty-five percent (25%) of his patients are referrals from physicians who

are reluctant to make such recommendations. In eight years, in his practice, he has madebetween 1,500 and 1,800 medical marijuana recommendations.

17. D r . Bearman is knowledgeable o f the Medical Board Statements regardingrecommending medical marijuana and CMA On-Call Document #1315. In his opinion, there

is insufficient scientific information and clear standards under the Medical Board'sguidelines for physicians to make medical marijuana recommendations. Further, the Medical

Board's guidelines are too rigid and not practical.

Dr. Bearman and several colleagues established the American Academy of •

Cannabinoid Medicine (AACM) in or about August 2007. The goal o f the organization is toprovide sufficient scientific and legal information to physicians so that they wil l be

comfortable making medical marijuana recommendations. AACM is at the developmentstage and has not completed the process necessary to obtain acceptance in the medical •

community. Though the organization has developed standards for making medical marijuanarecommendations, said standards have not been finalized.

Dr. Bearman believes that medical marijuana is a safer treatment modality than other

controlled substances and, therefore, does not require imposition of the Medical Board'sstandards; he offered no scientific evidence in support o f his position. Among other things,in his opinion, an extensive physical examination including vital signs is not necessary, and it

is not below the standard o f care to make medical marijuana recommendations for sixmonths or longer. Nevertheless, overall, his standard o f practice and those o f AACM areconsistent with the Medical Board's.

18. I n rendering his opinions, Dr. Bearman relied on police reports, several

discussions that he had with Respondent and a typed transcript o f Respondent's medicalrecords because the charts were illegible. Presumably, Respondent translated his medicalrecords for Dr. Bearman's review.

In some instances, Dr. Bearman's testimony was rambling and evasive. He had a

poor command of the facts. Dr. Bearman did not disagree with Dr. MacDonald's opinionsand admitted that Respondent deviated from the standard of care. He testified that theAACM guidelines and his standard of practice were the gold standards and that

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Respondent's deviations were minor, but offered insufficient evidence to establish thatanything but the Medical Board guidelines should be considered.

19. H a v i n g considered the facts in the foregoing paragraphs (Findings 10, 11, 12,13, 1431 5 ,16 ,17and18),Dr.MacDonald'stes

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Bearman's.

20. T h e standard o f practice for conducting a medical marijuana evaluation isidentical to that followed by a physician when he recommends any other medication ortreatment. The standard applies regardless of whether the physician is acting as a treating orconsulting physician. The medical marijuana evaluation is focused on the patient'spresenting condition but it does not disregard accepted standards o f medical responsibility;these standards include taking a history and conducting a physical examination concerningthe presenting complaint, development of a treatment plan with objectives, securing ofinformed consent, periodic review of the treatment's efficacy and proper record keeping. Insummary, the standard of practice for a physician recommending marijuana to a patient is the

same as pertains to recommending any other treatment or medication.

Patient Kimberly Summers

21. O n May 16, 2006, SDPD Detective Kimber Lea Hammond, now known asKimber Lea Bonilla (Detective Hammond), identification number 4931, posed as patientKimberly Summers (Patient Summers), and called to schedule an appointment to seeRespondent in his San Diego office. Detective Hammond scheduled the appointment forSaturday, May 20, 2006 at 10:30 a.m. in Respondent's San Diego clinic

22. O n May 20, 2006, at approximately 10:00 a.m., Detectives Hammond andShannon Boyce (Detective Boyce) entered Respondent's medical office at 311- 4th A v e n u e208, also identified as "Pioneer Warehouse Lofts," a secure building. On the buildingregister for office #208 was the initials "MMSD." Detective Hammond pushed the doorbellfor this office. A male voice, later identified as Respondent, answered and instructed them toproceed to office #208.

- 2 3 . U p o n reaching office #208, the detectives found the door cracked open, and aHispanic male inside sitting at a desk. The room was "L" shaped and small; one side was tenfeet by six feet and the other eight feet by six feet. There were two chairs in front of thedesk, and additional chairs in front of the door into the room. Upon entering the room, the

Hispanic male, later identified as Respondent, asked the detectives i f they were there toobtain medical marijuana recommendations. Detective Hammond answered affirmatively.Respondent responded that he needed $150.00 and identification from each of them.Detective Boyce told Respondent that he wanted to be Detective Harmnond's caregiver.Respondent asked the detectives i f they had completed the online paperwork. DetectiveHammond explained that she had checked his website but had not completed the onlinepaperwork. She handed Respondent $200.00 in cash. Respondent said it was too muchmoney; her recommendation would cost $150.00, and Detective Boyce's caregiver certificatewould be $25.00. Respondent gave Detective Hammond change and a receipt.

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24. D e tecti ve Hammond introduced herself to Respondent as "KimberlySummers" and asked his name. He replied "I'm Dr. Jimenez." Respondent gave eachdetective a cigarette lighter and an ashtray that was pre-printed with "MMSDMedicalmarijuanaofsandiego.com;" Respondent told Detective Boyce that i f he received arecommendation to be a caregiver, he should not smoke marijuana; i f he were found to bedoing so, he would be banned from all medical marijuana dispensaries, and Respondentwould not give him another recommendation. When Detective Hammond started to ask

Respondent general questions about marijuana, Respondent told her not to ask any questionsuntil he finished explaining everything to them. Then, Respondent gave them a summary ofmedical marijuana law and policy in California.

25. Respondent asked Detective Hammond what her medical condition was, andshe replied "insomnia." H e recorded her complaint as "chronic insomnia" on her medicalchart. He asked who her doctor was; she stated she believed it was "Boone." Respondentwrote down "Boone." Respondent asked i f she was taking any medications. She replied

"Lunesta." He did not look at the prescription for or the bottle of the medication.Respondent asked her general questions about alcohol and cigarette use, and whether she hada family history of alcoholism or depression.9

Respondent did not perform a physical examination on Detective Hammond.

Respondent gave Detective Hammond a medical marijuana recommendation for sixmonths and told her to return in six months. Further, he told her that, when she returned, hewanted her to bring documentation from a doctor that stated "chronic insomnia" and to makesure the doctor wrote "chronic insomnia" on the documentation. Respondent told her thatwhen she returned with the documentation and paid an additional $75.00, he would give heranother medical marijuana recommendation.

26. Respondent gave Detective Hammond a form entitled "Inform ConsentTreatment Plan and Objectives" (Informed Consent) which had several slash marks on it. Heinstructed Detective Hammond to initial the slash marks. She asked i f she should read the

form first; he replied she should initial where indicated since he had explained everything toher. She initialed the form as he directed. Respondent stated he would give her a copy of theform, and she could read it later.

27. Subsequently, on May 23, 2006, Detective Hammond read the form and the

items that she initialed. Respondent had explained some but others he had not. Specifically,Detective Hammond initialed that she had tried multiple drug and medical regimens with

9 W h e n Respondent asked if she smoked cigarettes, detective Hammond told him occasionally. When heasked her if she drank alcohol, detective Hammond said occasionally. Respondent asked if there was a history ofalcoholism in her family, detective Hammond told him there was. When asked whether she did drugs, heroin orwhether she was depressed, she said no. Respondent asked if there was a history of depression in the family,detective Hammond said there was not.

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unfavorable responses. In fact, Respondent did not ask Detective Hammond i f she tried anyother medications nor did she provide this information.

Detective Hammond initialed that i t was illegal to transport marijuana across statelines, on airplanes or on cruise ships but she could transport i t in the trunk of a car. WhenRespondent started to explain how to transport marijuana in a truck, he asked her i f she drovea truck, and she replied "no." Respondent told her not to worry about i t then, just make sureshe kept the marijuana in the trunk of her car. Otherwise, he did not explain transportation ofmarijuana.

Also, Detective Hammond initialed that marijuana could be grown in her house or hercaregiver's house only. Respondent explained that the detectives could grow six plants,three plants each and recommended that they go online to see how many marijuana plantsthey were authorized to use and explained that they could possess up to eight -o u n c e s o farijuana. She initialed this on the form.

Detective Hammond initialed that marijuana could affect her judgment and reactiontimes; it was not to be used with alcohol or other substances and medications which could

result in excessive sedation or loss of consciousness. However, Respondent did not explainthe foregoing to her. He did not discuss with her what effect, i f any, taking "Lunesta," aprescription sleeping pill, would have on her body when also using medical marijuana.

Detective Hammond initialed that she was aware that marijuana was authorized to beused for medical purposes under State law but was restricted under Federal law. Respondentdid not explain the restriction under Federal law.

The Informed Consent contained a clause that advised patients to inform their medicalprimary care provider that they had been placed on "medicinal use of cannabis" for aspecified diagnosis. However, although Detective Hammond told Respondent she hadinsomnia; he did not discuss this medical problem or ask her any questions about it. Inaddition, the Informed Consent indicated that when she returned on November 20, 2006, shewould receive a one year medical marijuana recommendation. He reminded her that shewould need to bring $75.00 for the new recommendation.

28. Respondent gave Detective Hammond a second form entitled "MedicalMarijuana of San Diego Physician Statement" (Physician Statement) and instructed her tosign it. She complied. Initial ly, Detective Hammond included the date on the top o f the

form. Respondent gave her another, blank copy of the same form to sign and instructed herto fil l out the form again, put her date o f birth on top, and the date at the bottom o f the form;she complied. The Physician Statement explained that Respondent is a licensed Californiaphysician and assigned her the number 307-42.

When she reviewed the form, Detective Hammond noted it indicated that Respondenthad assessed her medical history and medical condition and that Detective Hammond hadinformed him that cannabis provided relief for her symptoms. In fact, Respondent did notask Detective Hammond about her marijuana use or whether it helped with her insorrmia

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condition. Detective Hammond did not inform Respondent that marijuana provided relief forher symptoms as the Physician Statement said. In addition, the Physician Statement said thatRespondent had informed Detective Hammond that cannabis was restricted under Federal

law, how the benefits o f cannabis outweigh the risks and that Respondent would continue tomonitor her condition and provide advice on her progress; that Detective Hammond had been

informed that cannabis could affect her judgment and reaction time and that she should notoperate motor vehicles or hazardous equipment; that Respondent had been advised not to usealcohol or other substances or medications that could result in excessive sedation or loss of

consciousness. In fact, Respondent did not discuss any of these issues with DetectiveHammond.

She signed the Physician Statement authorizing Respondent to discuss her medicalcondition as it pertained to the use o f cannabis with law enforcement officials orverification/registration program officials who requested verification of this information.

29. Respondent gave Detective Hammond a small card that said "Passport"

(Passport) and asked her to write her name, date of birth and to sign it, and she did.Respondent gave Detective Hammond a blank envelope and asked her to write her name andaddress on it. Respondent asked Detectives Hammond and Boyce to trade places and took aphotograph o f Detective Hammond. Respondent told her that he would mail her medical

marijuana card.

30. Respondent asked Detective Boyce for his identification and completed a

"Designation of Primary Caregiver" (Caregiver form). Respondent asked both detectives tosign the form. He stated that the caregiver's name would be on the medical marijuana cardthat would be mailed to Detective Hammond.

31. W h i l e the detectives were finishing their session with Respondent, two othermen walked into Respondent's office. Respondent had a brief conversation with the men,told the detectives "goodbye and that he would see them again in six months."

32. Respondent testified that he made certain assumptions about DetectiveHammond's condition based on his interview and observations o f her. Some he recorded in

his medical records, others he did not. Despite the fact that Detective Hammond stated that

she had "insomnia," Respondent recorded "chronic insomnia." He testified that he did sobecause she told him that she had a prescription for "Lunesta," normally not provided unless

a patient has had difficulty sleeping for four weeks or longer, the definition of chronic

insomnia.

Respondent's testimony regarding the reason for prescribing medical marijuana was

not credible and did not justify his conclusion considering the minimal information that hehad about this patient.

33. P a t i e n t Summers presented at Respondent's San Diego clinic and requested arecommendation for medical marijuana. The standard of care for a physician recommendingmarijuana to a patient is the same as pertains to recommending any medication or treatment

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(Findings 10, 15 and 20). Considering the foregoing and the facts regarding Respondent's

care and treatment of Patient Summers, when he made the medical marijuanarecommendation, Respondent deviated from the standard o f care in the following respects.

The history obtained by Respondent was insufficient for him to make a diagnosis of

insomnia. Among other things, he did not ask questions about her condition or discuss thelength of her time she suffered from insomnia. In order to comply with the standard of care,

Respondent should have taken a more thorough history and. done a more in depth analysis ofher condition.

Respondent did not perform a physical examination. In order to comply with thestandard of care, he should have done a physical examination that included taking vital signs(blood pressure, pulse and respirations), performing cardiovascular and pulmonary

examinations, performing a reasonable neurological examination to rule out etiologies forinsomnia, palpating the patient's thyroid gland and mental status examination.

Respondent did not complete and maintain proper medical records for PatientSummers in that, among other things, he recorded information not conveyed to him by thepatient, such as "chronic insomnia" when she reported "insomnia."

Respondent's did not obtain and review medical records to confirm the medicalcondition that necessitated the need for medical marijuana.

Respondent did not contact Patient Summers' primary care and/or treating physicianto discuss/assess prior treatment for insomnia.

Detective Hammond was a new patient who did not present medical records forreview. Respondent made no effort to obtain any. He did not attempt to contact her primary

care or treating physician(s). Wi thout confirming the diagnosis or previous treatment forinsomnia, Respondent made a recommendation for medical marijuana, a controlled substanceas treatment for insomnia and scheduled the follow-up visit for six months later. Though

reasonable physicians may disagree regarding the appropriate time frame, the standard ofcare required that Respondent reevaluate Patient Summers in less than six months todetermine the efficacy of the treatment modality for insomnia.

Expert testimony established that Respondent's treatment of Patient Summers

represented an extreme departure from the standard of care.

Patient Mark Anderson

34. O n May 23, 2006, SDPD Detective Mel Lofflus, ID# 3541, (DetectiveLofftus), posing as patient Mark Anderson (Patient Anderson), called Respondent's office

for an appointment to obtain a recommendation for medical marijuana. He scheduled theappointment for May 24, 2006 at 5:30 p.m.

15



35. O n May 24, 2006, Detective Lofftus entered Respondent's clinic, located at311 — 4'hA v en u e,# 20 8,SanDiego,Cal iforniaandrecor

dedthevisi

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device.")W he nhea rr iv ed ,thedoorto#208waspartial

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observed and heard three men sitting at a desk inside the room talking. Detective Lofftusknocked on the door. Respondent greeted him and asked i f he was there for an appointmentto get a medical marijuana recommendation. When Detective Lofftus said "yes,"

Respondent invited him inside the office and instructed him to take a seat on a folding chairby the entrance door.

36. W h i l e seated, Detective Lofflus observed and heard Respondent talking to twomen who were patients. In his report, Detective Lofftus described the appearance of andconversations that Respondent had with these men. After Respondent completed hisdiscussion with these patients, Respondent called Detective Loam to be seated in front ofRespondent's desk.

37. Resp ondent asked Detective Loans i f he completed his medical forms

"online." Detective Lofftus stated that he had not, and Respondent said that was fine.Respondent said "he would need $150.00 and a California Identification from him." Hehanded Respondent $150.00 in cash and an undercover California Identification for anotherdetective in the name of "Mark Anderson." The California Identification contained the

photograph and physical description of the other detective, specifically a white male, 5'10",210 pounds, long blond, shoulder length hair, hazel eyes and a full mustache. DetectiveLoans is a white male, 5'8", 165 pounds, short blond hair, blue eyes and was unshaven forone week prior to this undercover visit. When Detective Lofftus handed Respondent thisidentification, his response was "Oh, wow, you've lost a lot of weight." Detective Lofflussaid "Boss, I have some issues." Respondent ignored this comment and asked what his dateof birth was while looking back and forth between the California Identification photographand Detective Lofftus sitting in front of him. Detective Lofftus gave him the correct date o fbirth, and Respondent replied, "That's an incredible difference! Unbelievable! You lookreally good now!" Respondent began explaining the forms that Detective Lofftus would berequired to complete and did not ask any more questions about the identificationdiscrepancies.

38. Respondent proceeded to give Detective Lofftus a brief history o f medicalmarijuana and advised that it should be treated like a gun, transporting it in the trunk of a carwhen the detective traveled anywhere. Respondent recommended that the detective followthe "three step rule" and explained the three steps it should take to retrieve marijuana from

the trunk of the car after he exited his vehicle. He told Detective Loffins several times that itwas illegal to transport marijuana over state lines.

39. Respondent explained that in order "to obtain medical marijuana" a patientmust have a diagnosis, summarized the list of most common qualifying medical conditions

10 T h e DVD of this undercover operation was admitted as Exhibit 24. Though the video can be seen, theaudio cannot be heard without appropriate software. This DVD was reviewed in making Findings of Fact in thiscase.

16



and then asked Detective Lofftus what his medical problem was. Detective Lofftus repliedthat he had pain in his spine and neck when he turned his head. Respondent asked how longhe had the pain, and Detective replied he had it for a "long time, guessing 13 years."

Respondent said the words "31 years." Detective Loffius reported that he did not know i fRespondent had not heard him or was telling him 31 years. Detective Lofftus agreed with

him by saying "at least." Respondent asked how he had been hurt, and Detective Loftlusreplied that he played a lot of ball as a kid in high school and got beat up pretty good.

Respondent asked Detective Lofftus to rate his degree o f pain between 1 and 10, with10 being the worst. Detective Lofftus said "about 5." Detective Lofftus stated that

Respondent gave him a strange look that he construed to mean that a different answer wouldbe more appropriate. Then, Detective Lofflus said "probably an 8" which Respondent wrote

down. Respondent asked how often he experienced the pain, and Detective Lofftus stated"every time I'm working." Respondent said "every day then, while at work."

Among other things, Respondent asked i f Detective Lofflus had any medical

problems, past addictions or surgeries. Detective Loftus responded "No, I don't really haveany." Respondent asked i f he had any family history of depression, anxiety or alcoholism.

Detective Lofftus responded, "Yeah, probably. I didn't know too much about my parents."Respondent asked i f he had any allergies to medications, and Detective Lofftus said "No."Respondent asked i f Detective Lofftus smoked, drank alcohol, used heroin or

methamphetamine. Detective Lofftus told him that he drank alcohol but did not use drugs.Respondent asked what kind of work he did. Detective Lofftus replied that he was an automechanic and worked in construction. Respondent asked i f he was married and had children.

Detective Lofftus reported that he was "pretty much single" and had two children.Respondent asked i f Detective Lofftus took any medication for pain, to which he responded,

"Just Tylenol."

In the medical records for Patient Anderson, Respondent reported his diagnosis as"chronic muscle spasms" in his neck caused by work.

40. A t this point in the assessment, Respondent asked questions about hiscomplaints.

Respondent asked i f it was usually in the right side of the neck, and Detective Lofftus

responded "Yes." 'Respondent testified that, at this time, he performed a brief physicalexamination that took 20 seconds. He and Detective Lofftus were sitting across the table

from each other; he rose from his chair, walked over to the patient, put his left hand on theright side of the patient's neck and asked i f the pain was usually on the right side o f his neck,

and Detective Lofftus responded "Yes." Respondent asked, "Is it the neck, upper back andshoulders?" Respondent testified that he palpated the right side of the trapezius muscle; and,

Detective Lofftus put his right hand on his shoulder, and said, "right up here; it kind ofspasms down into my shoulder;" he touched the right side of his neck, brought his fmger tohis shoulder, turned his head and said "spasms into shoulder." Detective Lofftus said "I fmd

myself kind of holding my shoulder up." Respondent asked i f the pain was positional, arecertain positions worse." Further. Respondent testified that he performed a range of motion

17



evaluation of the neck, ranges of motion included flexion, extension, rotation left, rotationright, side bend left and side bend right. In the patient's medical record, regarding hisphysical examination, Respondent reported, in pertinent part: "AA0X3 (alert awakeoriented), right neck, shoulder, upper back with trigger point muscle spasms, full range ofmotion with pain."

Respondent testified that Detective Lofftus' audio/visual recording of his undercoveroperation at his clinic supports his testimony. There is a knocking noise that grows graduallylouder at the point that Respondent testified he was conducting his physical examination.

In his report, Detective Lofftus stated that Respondent "did not examine my neck,have me turn my head to produce the pain or perform any medical test on me in any way."Detective Lofftus testified that Respondent did not perform a physical examination and didnot touch him; during the portion of the DVD that Respondent contends that he wasperforming the physical examination, in truth and in fact, Respondent was writing in hischart. On the tape, Detective Lo ffi

-us a s k e d i ft h e r ew a sc o n s t r u c t io n ,a n dR e s p on d e n t

explained the noise on the tape as his girlfriend setting up her art supplies.

Considering the testimony of Detective Lofftus, his report, the audio/visual recordingand Respondent's testimony, and the facts in the foregoing paragraphs, the conversationoccurred as Respondent described; however, Respondent's testimony that he performed thephysical examination was not credible. The DVD supports Detective Loffius' statements,and it is not reasonable to believe that Respondent performed the medical tests that heclaimed he did in the short amount o f time that he admits he spent performing the physicalexamination.

Therefore, based on the evidence in this record, i t was established that Respondentdid not perform a physical examination, and yet reported information that he could only haveobtained had he performed such an examination.

41. I n his medical record for Patient Anderson, Respondent marked "Neuro1NL11indicatingth

neurological evaluation based on his observation of the patient, not a physical examination.He did not perform sufficient appropriate medical tests to mark as indicated. He testified thathe should have written "grossly intact not come with obvious neurological deficits."

42. Respondent told Detective Lofflus he would give him a six-month

recommendation for medical marijuana; during this time period Detective Lofftus wouldhave to see a doctor to confirm his "qualifying diagnosis." Then Respondent scheduledDetective Lofflus' next appointment for November 24, 2006, stating that he would need tobring medical records on the next visit, explain how marijuana had helped his diagnosis andpay $75.00 for a one year renewal o f the medical marijuana recommendation,

IL WNL means within normal limits.

18



43. Respondent explained that the neck pain needed to be verified by a medicalprovider and described a list of different medical practitioners that Detective Lofftus couldcontact for an examination before returning for his next visit. Respondent said that he had afriend who was a "good acupuncturist;" when Detective Lofftus inquired about the

acupuncturist, Respondent said that he could not recommend her but she was really good,knew what Respondent needed and could fax the information to his office. Respondent

provided Detective Lofftus with contact information for his acupuncturist friend stating thathe needed to see her once and i f he never saw her again Respondent "could care less."Respondent explained that once he received a validation of Detective Lofflus' diagnosis, hewould not ask for it again. Detective Lofftus asked how much the visit with the

acupuncturist might cost. Respondent replied "very cheap." Respondent retrieved adocument from his fax machine and showed i t to Detective Loffttis, stating it was from his

acupuncturist friend concerning another patient. Respondent covered the patient's name andsaid he had been diagnosed with chronic headaches, as well as back and shoulder pain.

44. Respondent gave Detective Lofftus several documents to sign, including the

Informed Consent, Physician Statement and Passport.

The Informed Consent had several places for Detective Lofflus to initial; Respondentdid not explain the content of the form. Detective Loans printed his name and date o f birth

at the top of the form and initialed the form where indicated by Respondent. This formcontained a pre-printed list of acknowledgements that, by signing and/or initialing the form,Detective Lofflus was indicating he had done certain things and/or was aware of legal issuesconcerning marijuana. The first item was "I have tried multiple drug and medical regimens

with unfavorable response." Respondent did not discuss this issue nor did he inquire aboutit. Similarly, Respondent did not discuss other listed acknowledgements.

On the Physician Statement, Respondent instructed Detective Lofftus to write hisname and date o f birth at the top of the form and sign and date i t at the bottom. ThePhysician Statement indicated that Respondent was a licensed California physician, and thatPatient Anderson was a patient under his "medical care and supervision" for treatment of a

condition identified as "# 729-1 .

12 T h e

P h y s i c i a n

S t a t e m e n

t

w a s

a n

a c k n o w l

e d g m e n t

t h

a t

Respondent had assessed Detective Lofftus' medical history and condition and determinedthat cannabis was providing relief for symptoms related to his diagnosis of "chronic musclespasms." Respondent had no medical records and did not contact the patient's primary care

or treating physician. He obtained insufficient history to determine whether cannabisprovided relief for this patient's presenting symptoms.

Respondent gave Detective Lofftus a folded wallet-sized version of the PhysicianStatement which contained the word "Passport". Respondent instructed Detective Lofftus to

sign and date this document. He handed Detective Lofftus a blank envelope and directedhim to write his name and address on it, stating that the envelope would be used to send amedical marijuana photo identification card to Detective Lofftus. Respondent took Detective

12 Re sp o n d e n t explained to Detective Lo f ts that condition #729-1 was a diagnosis of "chronic musclespasms."

19



Lofftus' photograph for this identification card. During this process, Respondent's office

telephone rang several times, and Detective Lofftus overheard Respondent confirming thatvarious people were patients of his and when they were last seen by him. Respondentexplained to Detective Lofftus that he was able to remember the information because he hada photographic memory. The visit ended, and Respondent told Detective Lofftus that hewould see him in six months.

45. P a t i e n t Anderson presented at Respondent's San Diego clinic and requested a

recommendation for medical marijuana. The standard of practice for a physicianrecommending marijuana to a patient is the same as pertains to recommending anymedication or treatment (Findings 10, 15 and 20). Considering the foregoing and the facts

regarding Respondent's care and treatment 6f Patient Anderson, when he made the medicalmarijuana recommendation, Respondent deviated from the standard of care in the following

respects.

He obtained an inadequate history and he should have done a more focused

exploration of prior therapeutic interventions for the patient's complaints o f neck pain.

He did not perform a good faith physical examination that included vital signs, and

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evaluation was required. Dr. MacDonald did not dispute that a physician can determine agreat deal by observing a patient and that a significant portion of the neurological and mentalstatus examinations is done by observation. However, because the patient had complaints of

neck pain, Respondent should have performed a more comprehensive neurologicalexamination that included touching the patient; otherwise he was not able to assess for theintegrity of deep tendon reflexes or of gross sensation in the affected areas, a necessary part

of the examination.

He failed to maintain proper medical record keeping and made fraudulent medical

record entries in regards to Patient Anderson. Specifically, Respondent documented in thepatient's medical records that some type of physical examination was done; i t had not; hedocumented that the patient's neurological status was within normal limits (Neuro WNL); he

performed no neurological examination to make this determination; and he documented thathe examined the patient in response to his complaint of right neck, shoulder and back painand evaluated the patient's trigger points; he did not touch the patient.

Respondent's did not obtain and review medical records to confirm Patient

Anderson's medical condition that necessitated the need for medical marijuana.

Respondent did not contact Patient Anderson's primary care and/or treating physicianto discuss/assess prior treatment for his condition.

Detective Anderson was a new patient who did not provide medical records.

Respondent made no effort to obtain any. He did not attempt to contact the patient's primarycare or treating physician(s). Without confirming the diagnosis or previous treatment forpain, Respondent made a recommendation for medical marijuana, a controlled substance, as

20



treatment for chronic pain and scheduled his follow-up visit for six months thereafter.Though reasonable physicians may disagree regarding the appropriate time frame, thestandard o f care required that Respondent re-evaluate Patient Anderson in less than sixmonths to determine the efficacy of the treatment for his medical condition.

Expert testimony established that Respondent's treatment of Patient Andersonrepresented an extreme departure from the standard of care.

Patient IVilliam Zien2an

46. O n January 16, 2007, Officer William Cindel (Officer Cindel), workingundercover, entered 303 Broadway, Suite 204, Laguna Beach, California and requested amedical marijuana recommendation from Respondent. He used the fictitious patient name ofWilliam Zieman (Patient Zieman). There was no receptionist and no traditional lobby withinthe office. There were a number of other people waiting to see Respondent.

After waiting two hours, Respondent came into the lobby area and gathered sixpeople, including Officer Cindel, and took them into a conference room where he counseledthe six as a group. He told the group that they were being counseled together to save timeand to give him an opportunity to explain Proposition 215 and S.B. 420. He explained that i fthey preferred to meet with him individually, they could return to the waiting room. Noneelected to do so. Respondent passed paperwork to the members of the group to look overand to sign. The paperwork consisted of disclaimers, notes from Respondent and theInformed Consent. When the paperwork was completed, Respondent collected hisappointment fee of one hundred and fifty dollars ($150.00) from each person. Also,Respondent informed the group of the "most common" qualifying medical diagnoses for

medical marijuana. I t appeared to Detective Cindel that Respondent was leading the groupto tell them what they should say in order to obtain medical marijuana.

47. A f t e r his group counseling, in the same conference room, in the presence ofothers, Officer Cindel had his individual consultation with Respondent. He asked OfficerCindel what qualifying ailment he had. Officer Cindel responded "migraine headaches."Respondent asked Officer Cindel how long ago the migraine headaches began. OfficerCindel stated, "About two years ago I had a car accident." Respondent stated, "On a scalefrom one to ten, with ten being the most severe pain, what number represents how much painyou feel during your migraine headaches . n ine t e n ? " Officer Cindel started to explainthe pain brought him to his knees but was cut o ff by Respondent reiterating, "Nine t e n . "

Officer Cindel answered, "About a nine." Respondent asked Officer Cindel, "How often doyou have headaches... one t w o times a week?" Officer Cindel answered, "About once aweek." Respondent told Officer Cindel the next question had to be answered with a "Yes."He then asked Officer Cindel, "Do you feel like the potential benefits of medical marijuanause would outweigh the health risk?" Officer Cindel replied, "Yes." Respondent askedOfficer Cindel to stand. He walked over to where Officer Cindel was standing and said hewas going to examine him. Officer Cindel testified that Respondent told him to remain still,and he placed each o f his hands on his temples and lightly felt the temple area o f his headalong with the bridge of the nose and forehead. This took less than 20 seconds. When he

21



was done, Respondent congratulated Officer Cindel and told him that he was recommendingthe use o f medical marijuana for his medical ailment.

48. R esp ondent testified that he documented that the patient was within normallimits for "Neck," "Lungs/Chest," "CV" and "Neuro", based on the physical examination

that he performed. He testified that, wi th his stethoscope, he listened to the patient's lungsand heart, squeezed the patient's head to determine i f there was cranial tenderness, checkedfrontal and maxillary sinuses, touched his forehead between eyebrows right below thecheeks, palpated the sides o f his head and palpated the temporal mandibular joint. According

to Respondent, he performed his neurological examination by observing the patient; he sawno obvious signs o f paralysis; he testified that Officer Cindel "looked pretty healthy" and thathe probably should have written "grossly intact neuro."

49. T h e evidence regarding the physical examination o f Officer Chide! includedRespondent's medical record for Patient Zieman and the testimony of Officer Cindel,Theresa (Lowe) and Respondent.

Immediately following his undercover visit to Respondent's clinic, Lowe drafted a

report that was consistent with his testimony. Lowe testified that she was a patient inRespondent's clinic in January 2007 but she could not recall the date of her visit. Hertestimony is consistent with that of Officer Cindel regarding his physical examination butinconsistent in that she testified that Respondent listened to Officer Cindel's chest with his

stethoscope while there is no reference to the foregoing in Officer Cindel's report ortestimony. Considering the memories of each of these witnesses, Officer Cindel was morereliable.

Respondent falsified his medical records when he checked off boxes on the physicalexamination noting "WNL: for "neck," "Lungs/Chest," "CV" as well as "neuro" and

"general," because he did not perform a physical examination that was adequate to makethese determinations.

Expert testimony established that there was "no possible way" that Respondent wasable to evaluate the pulmonary and cardiovascular systems based on the brief physical

examination performed by Respondent. A physician can determine a great deal by observinga patient. A significant portion of the neurological and mental status examinations are doneby observation. However, in this case, there appears to be a falsification of the examination

that was done (described in the foregoing paragraph); and an adequate neurologicalexamination would include touching the patient in a manner not restricted solely in the

manner described by Officer Cindel because otherwise Respondent could not assess for theintegrity of deep tendon reflexes, for example, and a neurological examination would beimportant to do on a new patient complaining of a migraine headache.

50. P a t i e n t Zieman presented at Respondent's Laguna Beach clinic and requesteda recommendation for medical marijuana. The standard o f practice for a physicianrecommending marijuana is the same as pertains to recommending any other medication or

treatment (Findings 10, 15 and 20). Considering the foregoing and the facts regarding

22



Respondent's care and treatment of Patient Zieman when he made the medical marijuanarecommendation, Respondent deviated from the standard of care in the following respects.

The history that he obtained was inadequate in that he should have done a morefocused exploration of his prior treatment for migraine headaches.

The physical examination was inadequate. He did not obtain vital signs, falselydocumented that he performed a cardiovascular and pulmonary examinations and based hisneurological and mental status examinations solely on observation and touching the patient's

•forehead. H is progress notes were illegible.

He failed to maintain proper medical records and made fraudulent medical record

entries in regards to Patient Zieman. He documented in the patient's medical records that anadequate physical examination was done when it was not; he documented that the patientwas within normal limits for "Neck," "Lungs/Chest," "CV" and "Neuro" when in fact these

examinations could not have been done during his brief physical examination of the patient.

Respondent did not obtain and review medical records to confirm Patient Zieman'smedical condition that necessitated the need for medical marijuana.

Respondent did not contact Patient Ziemares primary care and/or treating physician todiscuss/assess prior treatment.

Detective Zieman was a new patient who did not provide medical records.

Respondent made no effort to obtain any and did not attempt to contact his primary care ortreating physician(s). Wi thout confirming the diagnosis or previous treatment for migraine

headaches, Respondent made a recommendation for medical marijuana and scheduled thefollow-up visit for six months later. Though reasonable physicians may disagree regarding

the appropriate time frame, the standard of care required that Respondent re-evaluate PatientZieman in less than six months to determine the efficacy of this treatment modality for

migraine headaches.

Expert testimony established that Respondent's treatment of Patient Ziemanrepresented an extreme departure from the standard of care.

A substantial body of the Informed Consent for Patient Zieman discusses routes ofadministration, daily dosages, etc. in some detail. 'What is not clear is whether Officer

Cindel initialed those areas or whether they were noted as "n/a" by Respondent.Clarification of this issue was not provided from the testimony of witnesses in this case.Nevertheless, having the language in the document exceeds the recommended role that a

physician should play when recommending medical marijuana. Respondent's failure toadhere to standards regarding individualized advice on how to use medical marijuana

represented a lack of knowledge.

23



51. Compla inant alleged that Respondent departed from the standard of care inthat he failed to provide adequate informed consent and failed to discuss the potential sideeffects of using marijuana to Patients Summers, Anderson and Zieman.

Respondent departed from the standard of practice in that he did not explain theinformation contained in the Informed Consent, did not give the patients time to adequately

review the Informed Consent or an opportunity to ask questions.

The standard o f care required that Respondent determine the risk/benefit ratio of

medical marijuana as good or better than other medications that could be used for the patient.Respondent did not ask questions about past marijuana use, did not discuss the potential sideeffects or risks and benefits as a treatment modality with these patients. As such, he wasunable to perform the required risk/benefit analysis and therefore departed from the standard

of practice.

The foregoing departures constitute repeated negligent acts in Respondent's care and

treatment of Patients Summers, Anderson and Zieman.

52. E x c e p t as provided in Finding 50, insufficient evidence was offered to

establish that Respondent displayed a lack of knowledge in his care and treatment of patientsSummers, Anderson and Zieman.

53. Respondent committed acts of dishonesty or corruption in his care andtreatment of Patients Summers, Anderson and Zieman in the following respects.

He directed each o f these patients to sign the Informed Consent without adequatediscussion regarding the contents of the document.. This document stated,. among other

things, that Respondent had "performed a good faith examination," that the patient "meet thecriteria for the medicinal use use [sic] o f cannabis," that "you have informed me thatcannabis is providing relief/may provide relief for related symptoms" associated with the

alleged qualifying diagnosis and that "Dr. Jimenez and I have discussed the medical benefitsand risks o f cannabis use as a treatment for my conditions, as well as other interventions."

Respondent knew these statements to be false at the time he directed these patients to sign

the documents in his presence and as a condition to receive a medical marijuanarecommendation.

He signed and directed these patients to sign the Physician Statement and Passport.

These documents indicated, among other things, that "my patient has informed me thatcannabis is providing/may provide relief for related symptoms" o f the qualifying diagnosisand "[mile have discussed the medical benefits and risks of cannabis use as a treatment for

this [the alleged qualifying diagnosis] condition, as well as other interventions." Respondentknew these statements to be false at the time that he signed these documents for these

patients.

Regarding Patient Anderson, he documented in his medical record that some type of

physical examination had been performed when it had not; that this patient's neurological

24



status was within normal limits (Neuro WNL) when no neurological examination had been

done; and that Respondent had actually examined the patient in response to his complaint o f"right neck, shoulder and upper back pain" and evaluated the patient's "trigger points"; and,he had not.

Regarding Patient Zieman, he documented in the patient's medical record that anadequate physical examination was done when it had not and that the patient was withinnormal limits for "Neck," "Lungs/Chest," "CV" and "Neuro" when these examinations were

not done by Respondent and could not have been done by Respondent during his briefexamination of Patient Zieman.

54. Respondent knowingly made and/or signed documents related to the practiceof medicine that falsely represented the existence or nonexistence of facts related to his care

and treatment o f Patients Summers, Anderson and Zieman in the following respects.

He directed each patient-to sign the Informed Consent without adequate discussion

regarding the contents o f the document. Among other things, this document indicated that hehad "performed a good faith examination," that the patient "meet [sic] the criteria for themedicinal use of [sic] of cannabis," that "you have informed me that cannabis is providingrelief/may provide relief for related symptoms" associated with the qualifying diagnosis andthat "Dr. Jimenez and I have discussed the medical benefits and risks of cannabis use as a

treatment for my conditions, as well as other interventions." Respondent knew these

statements to be false at the time that he directed each patient to sign the document in orderto!receive a medical marijuana recommendation.

He signed and directed each patient to sign the Physician Statement and Passport.

Among other things, these documents indicated that "my patient has informed me thatcannabis is providing/may provide relief for related symptoms" o f the qualifying diagnosis

and "[w]e have discussed the medical benefits and risks of cannabis use as a treatment forthis [the qualifying diagnosis] condition, as well as other interventions." A t the time thatRespondent signed the documents related to these patients receiving medical marijuanarecommendations, he knew these statements to be false.

Regarding Patient Anderson, he documented in the patient's medical record that a

physical examination had been performed, and i t had not; that the patient's neurologicalstatus was within normal limits, when no neurological examination had been done by

Respondent; and that Respondent actually examined the patient in response to his complaint

of "right neck, shoulder and upper back pain" and evaluated the patient's "trigger points"when he did not.

Regarding Patient Zieman, he documented in the patient's medical records that an

adequate physical examination was done, and it had not; and that the patient was withinnormal limits for "Neck," "Lungs/Chest," "CV" and "Neuro" when these examinations were

not done by Respondent and could not have been performed by Respondent during his briefexamination of Patient Leman.

25



55. Respondent failed to maintain adequate and accurate medical records forPatients Summers, Anderson and Zieman in the following respects.

He directed each of these patients to sign the Informed Consent without adequate

discussion regarding the contents of the document. Among other things, this documentindicated that Respondent had "performed a good faith examination," that the patient meet

[sic] the criteria for the medicinal use [sic] of cannabis," that "you have informed me thatcannabis is providing relief/may provide relief for related symptoms" associated with thequalifying diagnosis and that "Dr. Jimenez and I have discussed the medical benefits andrisks o f cannabis use as a treatment for my conditions, as well as other interventions."

Respondent knew these statements to be false at the time that he directed these patients tosign the document as a condition to receiving a medical marijuana recommendation.

He signed and directed each o f these patients to sign the Physician Statement and

Passport. These documents indicated, among other things, that "my patient has informed methat cannabis is providing/may provide relief for related symptoms" o f the qualifying

diagnosis and "[w]e have discussed the medical benefits and risks of cannabis use as atreatment for this [the qualifying diagnosis] condition, as well as other interventions." A t the

time that he signed these documents Respondent knew the statements to be false.

Regarding Patient Anderson, he documented in the patient's medical record that sometype o f physical examination was done when it was not; that the patient's neurological statuswas within normal limits when, in fact, Respondent performed no neurological examination;and that Respondent examined the patient in response to his complaint of "right neck,

shoulder and upper back pain" and evaluated the patient's "trigger points" when he did not.

Regarding patient Zieman, he documented in the patient's medical record that an

adequate physical examination was done when i t was not and that the patient was withinnormal limits for "Neck," "Lungs/Chest," "CV" and "Nem-o" when Respondent did not

perform these examinations and could not have done so during the brief examination of the

patient. In addition, Respondent's handwritten notes on the Progress Note, which indicates i tis for the "Jimenez—Ewa Beach Foundation Clinic" are in large part, illegible.

56. Respondent represented in his medical marijuana recommendations, the pre-

qualification disclaimer section on his medical marijuana websites, and in his "MedicalMarijuana Guide," which he sells to the general public, that he is a "Cannabis Specialist"

and/or a "Qualified Medical Marijuana Examiner." Complainant alleged that this statement

conveys a level o f expertise, specialization and/or possession o f a formal qualification in anarea that has no defined standard o f specialization or formal designation of "QualifiedMedical Marijuana Examiner". There is no formal process or education necessary to obtain

either of the foregoing designations.

Respondent testified that he used the designation o f "Qualified Medical MarijuanaExaminer" or "Cannabis Specialist"; further, in his opinion, the only qualification'to issue amedical marijuana recommendation in the State o f California is a physician and surgeon's

26



during the hearing or when the AdministrativeLaw Judge re-opened the record to allow theparties to address the issue.

LEGAL CONCLUSIONS

1. Co mp l a i n a n t bears the burden of proving the charges by clear and

convincing evidence to a reasonable certainty. (Ettinger v. Board of Medical QualityAssurance (1982) 135 Cal.App.3d 853.) This requires that he present evidence "of suchconvincing force that i t demonstrates, in contrast to the opposing evidence, a high probabilityof the truth" of the charges (BAIT 2.62), and be "so clear as to leave no substantial doubt."

(In re Angelia P. (1981) 28 Ca1.3d 908, 919; In re David C. (1984) 152 Cal.App.3d 1189,1208.) I f the totality of the evidence serves only to raise concern, suspicion, conjecture orspeculation, the standard is not met.

2. A physician's conduct as a physician can be the subject of discipline i f he has

engaged in acts that are defined as "unprofessional conduct." In the administrative disciplinecontext, unprofessional conduct refers to acts or omissions which satisfy the definition ofgross negligence, repeated negligent acts and/or incompetence.

Respondent had a duty to perform professional medical services for patients with thedegree of learning and skill ordinarily possessed by a reputable physician practicing in thesame or similar locality and under similar circumstances. I t was his duty to use the care and

skill ordinarily used in like cases by reputable members of his profession practicing in thesame or similar locality under similar circumstances and to use reasonable diligence and his

best judgment in the exercise of his professional skill and in the application of his learning,

in an effort to accomplish the purpose for which he was consulted. A failure to fulfil l anysuch duty is negligence. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279, 100 Cal.Rptr.82, 84; Huffinan v. Lundquist (1951) 37Cal2d 465, 473, 234 Pacld 34, 38; BAT/ 7th Ed.No. 6.00, 6.37.)

A physician is not necessarily negligent because he errs in judgment or because his

efforts prove unsuccessful. He is negligent only i f his error in judgment or lack of success isdue to a failure to perform any of the duties required of reputable members of his profession

practicing in the same or similar locality under similar circumstances. (Norden v. Hartman(1955) 134 Cal.Appld 333, 337, 285 Pac,2d 977, 980; Blocky. Caruso (1960) 187Cal.App.2d 195, 9 Calaptr. 634.)

A lack of ordinary care defines negligent conduct. Gross negligence is an error oromission that is egregious and flagrant. "Gross negligence has been said to mean the want of•even scant care or an extreme departure from the ordinary standard of conduct." (VanMeter

1/. Bent Construction Co. (1946) 46 Ca1.2d 588, 297 Pacid 644.) Attempting to categorizedegrees of negligence is difficu lt and oftentimes i t is hard to distinguish an act that is very

negligent from an act that is slightly grossly negligent. Nevertheless, a distinction has beenrecognized in the law between ordinary and gross negligence and this distinction forms thebasis upon which administrative jeopardy attaches to a respondent's conduct.

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Repeated negligent acts are an independent ground on which discipline can be

imposed on a physician. The term refers to a pattern of behavior as opposed to an isolatedincident. I t is well recognized by law and common sense that to err is human. A simpleisolated act of negligence by a medical professional has legal implications. However, the

legal implications involve the civil courts; a simple departure from the standard of care does

not trigger the imposition of administrative discipline. Repeated negligent acts denote apattern of negligent conduct that is strongly suggestive o f a high degree o f risk of harm to thepublic from this professional.

Incompetence generally refers to an absence of qualification, ability or fitness to

perform a specific professional function or duty. (Kearl v. Board of Medical QualityAssurance (1986) 189 Cal.App.3d 1040; Pollack v. Kinder (1978) 85 Cal.App.3d 833.)

3. C a u s e exists to discipline Respondent for unprofessional conduct underBusiness and Professions Code sections 2227 and 2234, as defined by section 2234,

subdivision (b) of the Code, in that Respondent was grossly negligent in his care, treatmentand management of Patients Summers, Anderson and Zieman, by reason of Findings 10through 50.

4. C a u s e exists to discipline Respondent for unprofessional conduct underBusiness and Professions Code sections 2227 and 2234, as defined by section 2234,subdiVision (c) of the Code, in that Respondent was repeatedly negligent in his care,

treatment and management of Patients Summers, Anderson and Zieman, by reason ofFindings 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, 21, 22, 23, 24, 25, 26 and 27, 34, 35,36, 37, 38, 39, 30, 41, 42, 43 and 44, 46, 47, 48, 49 and 51.

5. C a u s e exists to discipline Respondent for unprofessional conduct underBusiness and Professions Code sections 2227 and 2234, as defined by section 2234,

subdivision (d) in that he displayed a lack of knowledge in his care and treatment of PatientZieman, by reason o f Findings 46, 47, 48, 49, 50 and 52.

6. C a u s e exists to discipline Respondent for unprofessional conduct underBusiness and•Professions Code sections 2227 and 2234, as defined by section 2234,

subdivision (e) of the Code in that he committed an act or acts o f dishonesty or corruption inhis care and treatment of Patients Summers, Anderson and Zieman, by reason of Findings 21,22, 23, 24, 25, 26, 27, 28, 29 and 30, 34, 35, 36, 37, 38, 39, 40 and 41, 44, 46, 47, 48 and 49

and 53.

7. C a u s e exists to discipline Respondent for unprofessional conduct under

Business and Professions Code sections 2227 and 2234, as defined by section 2261 o f theCode, in that he knowingly made and/or signed documents related to the practice of medicine

that falsely represented the existence or nonexistence of facts in his care and treatment ofPatients Summers, Anderson and Zieman by reason of Findings 21, 22, 23, 24, 25, 26, 27,28, 29 and 30, 34, 35, 36, 37, 38, 39, 40 and 41, 44, 46, 47, 48 and 49 and 54.

29



8. C a u s e exists to discipline Respondent for unprofessional conduct underBusiness and Professions Code sections 2227 and 2234, as defined in section 2266 of theCode, for his failure to maintain adequate and accurate medical records for Patients

Summers, Anderson and Zieman, by reason of Findings 21, 22, 23, 24, 25, 26, 27, 28, 29 and30, 34, 35, 36, 37, 38, 39, 40 and 41, 44, 46, 47, 48 and 49 and 55.

9. C a u s e exists to discipline Respondent under Business and Professions Codesections 2227 and 2234, as defined by section 2271 o f the Code, in that he has made and

disseminated, or caused to be made and disseminated false and/or misleading advertising inviolation of section 17500 o f the Code, by reason o f Findings 5 and 56.

10. I n determining the appropriate discipline, consideration has been given to thelegislative intent that the purpose o f the statutory scheme to license and discipline physicians

and surgeons is to protect the public interest, rather than punish a wrongdoer. (FaInny V.Medical Board of California (1995) 38 Cal.App.4th 810.) To this end, Business andProfessions Code section 2229 states, in pertinent part:

"(a) Protecti on of the public shall be the highest priority for the Division ofMedical Quality a n d administrative law judges of the Medical Quality HearingPanel in exercising their disciplinary authority.

(b) I n exercising his or her disciplinary authority an administrative law judge of

the Medical Quality Hearing Panel, the division s h a l l , wherever possible, takeaction that is calculated to aid in the rehabilitation of the licensee

(c) I t is the intent of the Legislature that the division s h a l l seek out those

licensees who have demonstrated deficiencies in competency and then take thoseactions as are indicated, with priority given to those measures, including furthereducation, restrictions from practice or other means, that will remove those

deficiencies. Where rehabilitation and protection are inconsistent, protection shall beparamount."

11. Considering the facts, the minimal evidence of rehabilitation, the law and the

violations committed by Respondent, an order of discipline must be issued that rehabilitatesRespondent as long as his deficiencies in competency are sufficiently corrected to protect the

public interest. Complainant seeks revocation of Respondent's license, apparently based on

the view that nothing short of revocation is sufficient to protect the public.

Respondent has been licensed by the Osteopathic Medical Board more than 15 yearswith no prior discipline. Complainant established that he engaged in numerous acts ofunprofessional conduct that included, among other things, violations of the standard of care,

failure to maintain adequate and accurate records, dishonesty or corruption and false andmisleading representations in making medical marijuana recommendations.

30



He admitted that he made some mistakes, explained that it was not his intention todeceive his patients and wants to comply with the standard of care. In addition, he describedthe changes he had made in his practice.

Respondent's practice is self-focused. Among other things, he performed minimal,perfunctory, cursory examinations, did not provide adequate time to allow patients to

question him, recorded information not reported to him and disseminated false andmisleading information to the public. H is conduct demonstrated an attitude of defiance and alack o f appreciation of and respect for the role of Osteopathic Medical Board in protectingthe public and his obligation as a California licensed physician and surgeon to be a"gatekeeper" when making medical marijuana recommendations. He did not appear to becontrite or remorseful. He did not establish that he has learned from the experience.

Based on the foregoing, and the record as a whole, at this time, revocation is requiredto protect the public.

12. Compla inant seeks to recover the Osteopathic Medical Board's costs ofinvestigation and enforcement in this case. Respondent established that Respondentcommitted violations of the Medical Practice Act alleged in the First Amended Accusationand Legal Conclusions. Considering the foregoing, Complainant is entitled to recover thereasonable costs of investigation and enforcement in the amount of $74,323.39.

13. A l l factual and legal arguments not addressed herein, are not supported by theevidence, without merit and therefore rejected.

1. P h ys i c i a n 's and Surgeon's Certificate Number 20A6499 issued to RespondentAlfonso Jimenez, D.0 by the Osteopathic Medical Board of California is revoked.

2. U n l e s s the Osteopathic Medical Board of California agrees in writing topayment by an installment plan because of financial hardship, within 90 days of the effectivedate of this Decision, Respondent shall reimburse the Osteopathic Medical Board ofCalifornia $74,323.39 for its costs of investigation and prosecution.

DATED:

/3/

ORDER

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VALLERA J. JOHNSON

Administrative Law JudgeOffice of Administrative Hearings

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DECLARATION OF SERVICE BY MAIL

NAME AND ADDRESS CERT NO.

Alfonso Jimenez, D.O. 7007 0220 0001 4840 3156

420 K Street, #13. (sent by certified and regular mail)San Diego, CA 92101

Bruce M. Margolin, Esq. 7007 0220 0001 4840 3163

Law Offices of Bruce M. Margolin8749 Holloway DriveWest Hollywood, CA 90069

Steven Schectman, Esq. 7007 0220 0001 4840 3170Pacific Law

321 1

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Los Angeles, CA 90012

In the Matter of the Accusation Against:

Alfonso Jimenez, D.O.Case No. 00-2006-001760

OAH No. 2007100333

the undersigned, declare that I am over 18 years of age and not a party to thewithin cause; my business address is 1300 National Drive, Suite 150, Sacramento, CA95834. I served a true copy of the attached:

DECISION

by mail on each of the following, by placing it in an envelope (or envelopes) addressed(respectively) as follows:

Each said envelope was then, on March 11, 2009 sealed and deposited in theUnited States mail at Sacramento, California, the county in which I am employed, withthe postage thereon fully prepaid, and return receipt requested.

Executed on March 11, 2009 at Sacramento, California.

I declare under penalty of perjury under the laws of the State of California that

the foregoing is true and correct.

Angie M. Burton

Ii

Typed Name S i g n a t u r e

cc: T h e Honorable Vallera J. Johnson, Administrative Law JudgeMartin Hagen, Deputy Attorney General

t t , 1 7) 6 1 4 -



JURISDICTION

3. T h i s Accusation is brought before the Osteopathic Medical Board o f

California ("Board"), under the authority of the following sections o f the Business and Professions

Code ("Code")1

. 4. S e c t i o n 3600 states that the law governing licentiates of the Osteopathic

Medical Board of California is found in the Osteopathic Act and in Chapter 5 of Division 2, relating

to medicine. Section 3600.2 states:

"The Osteopathic Medical Board of California shall enforce those portions

of the Medical Practice Act identified in Article 12 (commencing with Section 2220),

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hereafter amended, as to persons who hold certificates subject to the jurisdiction of

the Osteopathic Medical Board of California, however, persons who elect to practice

using the term or suffix M.D. as provided in section 2.275 o f the Business and

Professions Code, as now existing or hereafter amended shall not be subject to this

section, and the Medical Board o f California shall enforce the provisions of the

article as to such persons who made the election. After making the election, each

person so electing shall apply for renewal of his or her certificate to the Medical

Board o f California, and the Medical Board o f California shall issue renewal

certificates in the same manner as other certificates are issued by it."

5. S e c t i o n 2227 of the Code provides that a licensee who is found guilty under

the Medical Practice Act may have his or her license revoked, suspended for a period not to exceed

one year, placed on probation and required to pay the costs of probation monitoring, or such other

action taken in relation to discipline as the Division deems proper.

/ / / /

/ / / /

/ / / /

1. Unless otherwise noted, all references are to the California Business and Professions Code.



6. S e c t i o n 2234 of the Code states:

The Division of Medical Quality shall take action against any licensee who

is charged with unprofessional conduct. In addition to other provisions of this article,

unprofessional conduct includes, but is not limited to, the following:

"(a) Vio la ti ng or attempting to violate, directly or indirectly, assisting in

or abetting the violation of, or conspiring to violate any provision of this chapter

[Chapter 5, the Medical Practice Act].

"(b) Gr o s s negligence.

"(c) R epeated negligent acts. To be repeated, there must be two or more

negligent acts or omissions. A n initial negligent act or omission followed by a

separate and distinct departure from the applicable standard of care shall constitute

repeated negligent acts.

"(1) A n ini tial negligent diagnosis followed by an act o r omission•

medically appropriate for that negligent diagnosis of the patient shall constitute a

single negligent act.

"(2) W h e n the standard of care requires a change in the diagnosis, act, or

omission that constitutes the negligent act described in paragraph (1), including, but

not limited to, a reevaluation o f the diagnosis or a change in treatment, and the

licensee's conduct departs from the applicable standard o f care, each departure

constitutes a separate and distinct breach o f the standard of care.

"(d) Incompetence.

"(e) T h e commission of any act involving dishonesty or corruption whichis substantially related to the qualifications, functions, or duties of a physician and

surgeon.

"(f) A n y action or conduct which would have warranted the denial of a

certificate.

3



7. S e c t i o n 2261 provides, in pertinent part, that knowingly making or signing

any certificate or other document directly or indirectly related to the practice of medicine which

falsely represents the existence or nonexistence o f a state o f facts, constitutes unprofessional

conduct.

8. S e c t i o n 2266 of the Code provides that the failure to maintain adequate and

accurate records relating to the provision of services to their patients constitutes unprofessional

conduct.

9. S e c t i o n 2271 o f the Code states "[a]ny advertising in violation of Section

17500, relating to false or misleading advertising, constitutes unprofessional conduct."

10. S e c t i o n 17500 of the Code states:

"It is unlawful for any person, firm, corporation or association, or any

employee thereof with intent directly or indirectly to dispose of real or personal

property or to perform services, professional or otherwise, or anything of any nature

whatsoever or to induce the public to enter into any obligation relating thereto, to

make or disseminate or cause to be made or disseminated before the public in this

state, or to make or disseminate or cause to be made or disseminated from this state

before the public in any state, in any newspaper or other publication, or any

advertising device, or by public outcry or proclamation, or in any other manner or

means whatever, including over the Internet, any statement, concerning that real or

personal property or those services, professional or otherwise, or concerning any

circumstance o r matter o f fact connected with the proposed performance or

disposition thereof, which is untrue or misleading, and which is known, or which by

the exercise of reasonable care should be known, to be untrue or misleading, or for

any person, firm, or corporation to so make or disseminate or cause to be so made or

disseminated any such statement as part of a plan or scheme with the intent not to sell

that personal property or those services, professional or otherwise, so advertised at

the price stated therein, or as so advertised. Any violation of the provisions o f this

section is a misdemeanor punishable by imprisonment in the county jai l not

4



exceeding six months, or by a fine not exceeding two thousand five hundred dollars

($2,500), or by both that imprisonment and fine."

11. S e c t i o n 125.3 of the Code provides, in pertinent part, that in any order issued

in resolution of a disciplinary proceeding, a board may request that the administrative law judge

direct a licensee found to have committed a violation or violations of the licensing act to pay a sum

not to exceed the reasonable costs of the investigation and enforcement of the case, including charges

imposed by the Attorney General. Under section 125.3, subdivision (c), a certified copy of the actual

costs or a good faith estimate of costs where actual costs are not available, including investigative

and enforcement costs, and charges imposed by the Attorney General, up to the date of the hearing,

signed by the designated representative of the entity bringing the proceeding shall be prima facieevidence of the reasonable costs of investigation and prosecution of the case.

FIRST CAUSE FOR DISCIPLINE

(Gross Negligence)

12. Respondent is subject to disciplinary action under Sections 2227 and 2234,

as defined by Section 2234, subdivision (b) of the Code, in that Respondent was grossly negligent

in his care, treatment and management of the following patients, as more particularly alleged

hereinafter:

INTRODUCTION

a. R e sp onde n t operates various Medical Marijuana clinics located in San

Diego,' Orange, Los Angeles and Santa Barbara counties. I n addition to the

2. The website for Medical Marijuana of San Diego now provides a disclaimer that states, inpertinent part, "Medical Marijuana of San Diego has temporarily moved to the San Diego/OrangeCounty Border for the following reason: There are no Dispensaries or Co-ops to obtain MedicalMarijuana in the San Diego county. Currently, The Board of Supervisors of San Diego Countyhasn't implemented the Marijuana Laws, so as a result there isn't a Dispensary or Co-op in SanDiego, requiring all Medical Marijuana patients to travel to Orange or LA county to obtain MedicalMarijuana legally N e w San Diego Medical Marijuana patients wi l l receive a 1 yearrecommendation (instead of 6 months) by providing proof or residence in the San Diego County,and will be able to obtain Medical Marijuana immediately after the doctor's visit. Please let thedoctor know i f you are from San Diego. The Orange County office is on the north side of the SanDiego County and Orange County border."

5



California clinics, Respondent also operates a medical marijuana clinic in Hawaii.

These clinics operate under the names of Medical Marijuana of San Diego, Medical

Marijuana of Orange County, Medical Marijuana of Los Angeles, Medical Marijuana

of Santa Barbara, and Medical Marijuana o f Hawaii. A s part o f the medical

marijuana business, Respondent markets his medical marijuana operation through

several web-sites.' Through these websites, potential patients can, among other

things, pre-qualify online for medical marijuana recommendations, review various

links or articles pertaining to medical marijuana, view video streams in which

Respondent provides his view on medical marijuana and can purchase such items as

Dr. Jimenez's Medical Marijuana Guide. I n Dr. Jimenez's Medical Marijuana

Guide, information is provided on, among other things, different rn

. e t h o d s o fadministering marijuana, tips on growing marijuana indoors, different recipes for

marijuana edibles, and how to beat the urine test for the presence of marijuana.

Some of the links in the websites for Dr. Jimenez's various medical marijuana clinics

direct the website users to cannabis websites which, among other things, advise the

website users of the various dispensaries and cooperatives where marijuana can be

purchased assuming the purchaser has a medical marijuana recommendation.

Respondent classifies himself as a Qualified Medical Marijuana Examiner who has

written over six thousand (6,000) medical marijuana recommendations with the goal

of reaching eight thousand (8,000) by the end o f the year.

b. T h e whole operation, which includes Dr. Jimenez, as a self-described

"Qualified Medical Marijuana Examiner," and his websites, referral to other cannabis

3. T h e pertinent websites a re www.medicalrnarijuanaofsandieRo.corn:www. edicalmarijuanaoforanaecountv.corn: www.medicalmarijuanaoflosangeles.com:

www.m edi calm arij uan aofsantab arbara.c om: and www.m ed i cal marjuanaothawaii.com. In additionto the "medical marijuana" websites, there is also the following websites: www.drjimenez.org(containing Respondent's curriculum vitae along with links to payment options for prequalificationand the face-to-face visit with Respondent and another l ink for the "history of hemp"); andwww.1888215herb.com which links to the prequalification site and advertises web based medical

marijuana verifications [open 24 hours].

6



related websites, and his Medical Marijuana Guide are all geared towards getting

patients into Respondent's clinics where they can then, with a cursory and inadequate

"examination," obtain amedical marijuana recommendation or care givers certificate.

The operation is , i n fact, a sham and mi l l i n which medical marijuana

recommendations and care giver certificates are provided to a large number o f

patients who fa i l to meet the criteria fo r legitimate medical marijuana

recommendations or care giver certificates.

PATIENT KIMBERLY SUMMERS

13. Respondent is subject to disciplinary action under sections 2227 and 2234,

as defined by 2..234, subdivision (b), of the Code in that he was gTossly negligent in his care and

treatment of patient "Kimberly Summers," as more particularly alleged hereinafter:

A. D u r i n g 2005 and 2006, the San Diego Police Depai tment and the San

Diego District Attorney's Office became aware of the proliferation within San Diego

County o f medical marijuana "dispensaries" that were facilitating the sale o f

marijuana to citizens who had presented "recommendations" issued by local

physicians. Upon preliminary investigation, it was determined that the vast majorityof these physician recommendations had been issued to patients who were under 30

years of age and/or reportedly had medical conditions such as insomnia, anxiety and

depression. Only approximately 3% of such recommendations were issued for more

serious medical conditions such as cancer, glaucoma and AIDS.

B. B a s e d on the above preliminary investigative findings, the San Diego

Police Department, in conjunction with the San Diego District Attorney's Office,

initiated an undercover investigation o f several San Diego physicians. These

physicians were among those previously identified as issuing a significant number

of "marijuana recommendations" to young patients who appeared to not have serious

medical conditions. Respondent was one o f the physicians so identified.

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Respondent's business name was listed as "Medical Marijuana of San Diego"which

was located was 311 4'h A v e n u e ,S a n

D i e g o,C A .'

C. O n or about May 16, 2006, San Diego Police detective K. Hammond

(now K. Bonilla), 1D# 4931, posing as patient "Kimberly Summers," called one of

Respondent's medical offices to schedule an appointment to see Respondent. A

receptionist told her there were no appointments available in Respondent's San

Diego office until Saturday, May 20, 2006 at 10:30 a.m. However, i f the detective

could not wait until Saturday, there was an appointment available in Respondent's

Orange County office on May 17, 2006. The detective chose to schedule the May 20,

2006 appointment at 10:30 a.m. The detective was told by Respondent's receptionist

to bring $150.00, a California identification card and copies of her medical records.

D. O n or about May 20, 2006, at approximately 10:00 a.m., detective

Hammond, and a detective S. Boyce, entered Respondent's medical offices at 311 4thAvenue, #208, also identified as "Pioneer Warehouse Lofts," a secure building that

required visitors to be admitted remotely from within the building. The detective

observed on the building register for office #208 the initials "MMSD" and she

pushed the doorbell for this office. A male voice answered, later identified as

Respondent, who instructed them to proceed to office #208.

E. U p o n reaching office #208, the detectives found the door cracked

open and a Hispanic male inside sitting at a desk. The L shaped room was very

small, one side being approximately 10' x 6' and the other approximately 8' x 6'.

There were two chairs sitting in front of the desk and additional chairs in front of the

door into the room. Upon entering the room, the Hispanic male, later identified as

Respondent, asked the detectives i f they were there to obtain medical marijuana

recommendations. Bo th answered affirmatively. Respondent then said "I need

4. Respondent has since closed up shop at this location, apparently because local lawenforcement officials have targeted the dispensaries and cooperatives in San Diego County.

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$150.00 and your identification from each o f you:" Detective Boyce then told

Respondent that he wanted to be detective Hammond's care giver. Respondent then

asked the detectives i f they had completed the paperwork "on-line." Detective

Hammond stated that she had checked Respondent's web site, but did not fill out any

paperwork. Detective Hammond then handed Respondent $200.00 in cash, to which

Respondent replied it was too much money, stating that her recommendation would

cost $150.00 and Detective Boyce's care giver certificate would only cost $25.00.

Respondent then gave Detective Hammond change for the $200.00 and a receipt.

F. D e te c t i v e Hammond then introduced herself to Respondent as

"Kimberly Summers" and asked Respondent what his name was to which he replied

"I'm Dr. Jimenez." Respondent then gave each detective a cigarette lighter and an

ashtray that was pre-printed with "MMSD Medicalmarijuanaofsandiego.com."

Respondent then told detective Boyce that i f he received a recommendation to be a

care giver, he should not smoke marijuana and i f he were found to be doing so, he

would be banned from all medical marijuana dispensaries and Respondent would not

give him another recommendation. When detective Hammond started to ask

Respondent general questions about marijuana, Respondent told her not to ask any

questions until he was done explaining everything to them. Respondent then began

a summary of medical marijuana in California.

G. Respondent then asked detective Hammond what her medical

condition was to which she replied "insomnia." Respondent then was observed

writing down the words "chronic insomnia." Respondent then asked her who herdoctor Was and she stated she believed i t was "Boone." Respondent wrote down

"Boone." Respondent asked her i f she was taking any medications. She replied

"Lunesta." Respondent then asked her general questions about alcohol and cigarette

use, and whether she had a family history of alcoholism or depression. Respondent

did not perform any medical examination on detective Hammond, never touched her

or came close to her while asking questions, did not take her blood pressure and did

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not ask to look at her prescription for "Lunesta." Respondent just told her to return

to see him in six months while telling her he was going to give her a medical

marijuana recommendation for six months. Respondent further told her that when

she returned in six months, he wanted her to bring some documentation from a doctor

that indicated "chronic insomnia," and she was to make sure the doctor actually

wrote "chronic insomnia" on the documentation. Respondent then told her that when

she returned with this documentation, and paid him an additional $75.00, he would

give her another medical marijuana recommendation.

H. Respondent gave detective Hammond a form entitled "Informed

Consent Treatment Plan and Objectives" which had several slash marks on ft.

Respondent told her to initial each o f the slash marks. Th e detective asked

Respondent i f she should read the form first to which Respondent replied she should

just initial where indicated since he had already explained everything to her. She

then initialed the form as directed and Respondent stated he would give her a copy

of the form and she could read it later.

1. I n reviewing this form at a later date, Detective Hammond observedthat some things she had initialed had not been explained to her by Respondent.

Specifically, she initialed that she had tried multiple drug and medical regimens with

unfavorable responses. I n fact, Respondent never asked the detective for this

information, nor did she provide it. The detective also initialed that it was illegal to

transport marijuana across state lines, on airplanes or on cruise ships, but it was okay

to transport i t in the trunk of a car. When Respondent started to explain how totransport marijuana in a truck, he asked the detective i f she drove a truck and she

replied no. Respondent then said not to worry about it then, just make sure she keeps

the marijuana in the trunk o f her car. Detective Hammond also initialed that

marijuana could only be grown at her house or her care giver's house. Respondent

explained that the detectives both could only grow six plants, three planfs each,

recommending that they go online to see how many marijuana plants they were

10



authorized to use, explaining they could only possess up to 8 ounces of marijuana.

Detective Hammond also initialed that marijuana could affect her judgement and

reaction times and that it was not to be used with alcohol and other medications that

could result in excessive sedation or loss of consciousness. However, Respondent

never explained this to her. Nor did he discuss with her what effect, i f any, her

taking "Lunesta," a prescription sleeping pill, would have on her body when also

using medical marijuana. Detective Hammond also initialed that she was aware that

marijuana was authorized to be used for medical purposes under state law, but was

restricted under federal law. However, Respondent never explained the federal law

restriction issue.

J. T h e Informed Consent form also contained a clause that advised

patients to inform their medical primary care provider that they had been placed on

"medicinal use of cannabis" for a specified diagnosis. However, although detective

Hammond had told Respondent she had insomnia, Respondent did not discuss this

medical problem with her or ask her any questions about it. The Informed Consent

form also indicated that when detective Hammond returned on November 20, 2006,

she would receive a one year medical marijuana recommendation. Respondent

reminded her that she would need to bring $75.00 for this new recommendation.

K. R e s p o n d e n t also gave Detective Hammond another form entitled

"Medical Marijuana of San Diego Physician Statement" and instructed her tb sign it,

which she did. She also included the date on the top of the form. Respondent then

gave her another of the same form to sign and instructed her to put her date of birthon top instead, and the date at the bottom, which she did. This form explained that

Respondent is a licensed California physician and assigned the detective the number

307-42. In reviewing the form, the detective noted it indicated that Respondent had

assessed her medical history and medical condition and that the detective had

informed Respondent that cannabis provides relief for her symptoms. I n fact,

Respondent never asked the detective about her marijuana use or whether it helped

11



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her with the insomnia condition and the detective never informed Respondent that

cannabis provides relief for her symptoms as the form states. This form also stated

that Respondent had informed her that cannabis was restricted under federal law, how

the benefits of cannabis outweigh the risks and that Respondent would continue to

monitor her condition and provide advice on her progress. The "Medical Marijuana

of San Diego Physician Statement" also indicated that the detective had been

informed that cannabis can affect her judgement and reaction times and that she

should not operate motor vehicles or hazardous equipment. Further, the form stated

the detective was advised not to use alcohol or other substances or medications that

could result in excessive sedation or loss of consciousness. In fact, Respondent did

not discuss any of these issues with the detective, telling her only to transport her

marijuana in the trunk of her car when she drove. This form also asked the detective

to sign that she gave permission for Respondent to discuss her medical condition as

it pertains t o th e u se o f cannabis w i th l aw enforcement officials o r

verification/registration program officials who request such information.

L. R espondent then gave the detective a little card marked "Passport,"

and asked her to write her name and date of birth on i t and then sign it, which she

did. Respondent next gave the detective a blank envelope and asked her to write her

name and address on it. Respondent then took a photograph of detective Hammond,

after asking detective Boyce to move. Respondent then stated he would mail

detective Hammond a medical marijuana card.

M. Respondent next asked detective Boyce for identification and then

completed a "Designation of Primary Care giver" form. Both detectives were asked

to sign the form, stating that the care giver's name would be on the medical

marijuana card that would be mailed to detective Hammond.

N. W h i l e the detectives were finishing their session with Respondent,

two other people walked into Respondent's office, Respondent asked them i f they

were there for a medical marijuana recommendation. One of them, a white male,



stated he was there for a medical marijuana recommendation and Respondent told

him " I need S150.00 and your identification." Th e other, a black male, told

Respondent this was his return visit, Respondent told him "1 will need your doctor

recommendation and $75.00." This person responded that he did not bring his

doctor's recommendation to which Respondent replied "Okay, we will talk about it

in a minute." Respondent then said goodbye to both detectives and said he would see

them in six months. The entire office visit lasted approximately 15 minutes. As they

exited Respondent's office, both detectives observed several people waiting to see

Respondent, all sitting only a short distance away and all able to hear the

conversations the detectives had with Respondent.

14. Respondent committed gross negligence in his care and treatment of patient

Kimberly Summers, which included, but was not limited to, the following:

A. Paragraphs 12 through 14, above, are incorporated by reference as i f

fully set forth herein;

B. R espondent failed to perform a history and appropriate examination

of the patient;C. Respondent failed to maintain proper medical record keeping and

made fraudulent medical record entries;

D. R espondent failed to schedule and/or provide for adequate periodic

review and assessment o f his treatment plan concerning patient "Kimberly

Summers' claimed medical condition;

E. Respondent made no attempts, or failed to document attempting, any

efforts by him to obtain the patient's prior medical records from her primary care

physician in order to verify the patient's alleged medical condition that she claimed

necessitated the need for medical marijuana; and

F. Respondent failed to contact or attempt to contact any of the patient's

prior treating physicians before recommending medical marijuana to her.

/

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PATIENT MARK ANDERSON

15. R es pondent is further subject to disciplinary action under sections 2227 and

2234, as defined by section 2234, subdivision (b), of the Code in that he was grossly negligent in his

care and treatment of patient "Mark Anderson," as more particularly alleged hereinafter:

A. O n or about May 23, 2006, San Diego Police detective Mel Loftus,

ID# 3541, posing as patient "Mark Anderson," called Respondent's office for an

appointment to see Respondent in order to obtain a recommendation for marijuana.

An unidentified female answered the phone "Medical Marijuana of San Diego." The

female asked the detective i f he wanted an appointment in San Diego or Orange

County and he said San Diego. The female stated that Respondent could see him the

next day, May 24

th

, a t

5 : 3 0

p . m .

a n d

t h

e

c o

s tw o

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e

$ 1

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0 0

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ue

a

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e

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o

f

visit. The detective was instructed to also bring a California identification card and

copies of his medical records. T he detective responded that he did not have any

medical records because he had not seen a doctor in a long t ime. T h e female

responded that he would still be able to get a marijuana recommendation and he

would be told by Respondent to bring in the medical records next time he came in to

the office. The female asked only for the detectives first name and then ended the

call.

/ / /

B. O n or about May 24, 2006, detective Mel Loftus, posing as patient

"Mark Anderson," entered Respondent's medical practice at 311 4

1 1 1

A v e n u e , # 2 0 8 ,an Diego, CA. This vis it was recorded by a video/audio device. On his arrival, the

door to suite 208 was partially opened and the detective was able to observe three

men sitt ing at a desk inside talking. T he detective knocked on the door and was

greeted by Respondent who asked him i f he was there for an appointment to get a

medical marijuana recommendation. T he detective said yes and Respondent then

invited him inside the office and to take a seat on a folding chair by the entrance

door.

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C. W h i l e seated, the detective observed Respondent talking to the other

two men that were patients. One of the men was a black male who appeared to be

in his late twenties, about 62", weighing about 230 pounds, dressed in surf shorts and

a tee shirt. The other man was a white male, also in his late twenties, about 6 tall

and 210 pounds, dressed in casual street clothes. A l l three men, including

Respondent, appeared very relaxed and talkative, discussing topics such as the

history of Medical Marijuana, how to file complaints against law enforcement, and

Respondent's plan to launch an advertising campaign for a new office he was

opening on Rodeo Drive in Los Angeles.

D. W h i l e seated, the detective also observed Respondent completing

documents for the black male patient and heard conversation that this person was a

returning patient who was paying Respondent $75.00 for a one year renewal of a

medical marijuana recommendation previously issued by Respondent. The detective

also observed that this patient did not present any medical records to Respondent, nor

were any requested by Respondent or 'discussed. This patient paid in cash and left

with his paperwork. The patient was observed by the detective to be healthy and inno obvious medical distress.

E. A f t e r the black male patient left, Respondent turned his attention to

the white male patient. Respondent first collected $150.00 in cash from him as a new

patient. Th is patient then told Respondent that he had been treated by a Dr. T. for

anxiety, and had brought some medical records with him. Respondent thanked the

patient for bringing the records with him and briefly reviewed them. Respondent

then told the patient that he did not see anything in the medical records for "anxiety",

so he would record "chronic joint pain" for the patient on the medical marijuana

recommendation. As the patient left Respondent's office, the detective observed that

this patient also appeared to be healthy and in no obvious medical distress.

F. T h e detective was next called to be seated in front of Respondent's

desk. Upon doing so, Respondent asked him i f he had completed his medical forms

15



"online." The detective said he had not and Respondent said it was fine. Respondent

next said he would need $150.00 and a California I.D . from the detective.

Respondent was handed $ 1 50.00 in cash and an undercover California ID for another

detective in the name of "Mark Anderson." This ID contained the photograph and

physical description of the other detective, specifically a white male, 510", 210 lbs,

long blond, shoulder length hair, hazel eyes and a full mustache. Detective Loftus

is a white male, 5'8", 165 lbs, short blond hair, blue eyes and was unshaven for one

week prior to this undercover visit. When detective Loftus handed Respondent this

ID, Respondent's response was "Oh, wow, you've lost a lot o f weight." The

detective then said "Boss, I have some issues." Respondent ignored this comment

and then asked the detective what his date of birth was while looking back and forth

between the ID photograph and detective Loftus sitting in front ofhim. The detective

gave him the correct date o f birth and Respondent replied "That's an incredible

difference! Unbelievable! You look really good now!" Respondent then began

explaining forms the detective was required to complete and did riot ask anymore

questions about the ID discrepancies.

G. Respondent then proceeded to give he detective a brief history of

Medical Marijuana and advised that it should be treated like a gun, transporting it in

the trunk of a car when the detective traveled anywhere. Respondent recommended

that the detective follow the "three step rule," meaning that it should take at least

three steps after exiting a vehicle in order to retrieve marijuana in the trunk of the car.

Respondent also told the detective that it was illegal to transport marijuana over statelines.

Respondent next asked the detective about his medical condition. The

detective replied he had pain in his spine and neck when he tamed his head.

Respondent asked how long he had the pain and the detective replied he had it for a

"longtime," guessing 13 years. Respondent however, said the words 1131 y e a r s ? " a n dthe detective just agreed with him by saying "at least." Respondent asked how he

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had been hurt and the detective replied that he had played a lot of ball as a k id in

school. Respondent then explained how it could be necessary to convince a court

that a condition was real and then listed recognized medical conditions to receive

medical marijuana. A f t e r explaining this lis t o f accepted medical conditions,

Respondent then asked the detective again what his medical condition was. The

detective started to repeat the neck problem when Respondent asked him if he had

ever seen a doctor for the problem. T he detective explained that he could not afford

to see a doctor. Respondent then asked i f the detective smoked, drank alcohol, or

used heroin or methamphetamine. The detective replied that he drank alcohol, but

did not use drugs. Respondent asked i f the detective was married and had any

children, to which he replied he was not married, but did have children. Respondent

then asked i f the detective takes any medication for pain, to which he responded

"only Tylenol."

I. R e s p o n d e n t next asked the detective to rate his degree ofpain between

I and 10, with 10 being the worst, The detective said "5." Respondent gave the

detective a strange look suggesting that a different answer would be More

appropriate. T he detective then changed his answer to "probably an 8, " which

Respondent then wrote down. Respondent asked how often the pain occurred and

the detective stated "When I am at work ." Respondent asked what k ind of work he

did. The detective replied that he was an auto mechanic and worked in construction.

Respondent than stated that the detective's diagnosis is "chronic muscle spasms" in

his neck caused by work. Respondent did not examine the detective's neck or ask

him to move it in any way to produce the alleged pain. Nor did Respondent perform

any other medical test on the detective.

J. R e s p o n d e n t next told the detective he would give him a six month

recommendation for medical marijuana and during this time period, the detective

would have to see a doctor to confirm his "qualify ing diagnosis." Respondent then

scheduled the detective's next appointment to be November 2.4, 2006, stating that he

17



wanted the detective to bring medical records on this next visit and also to explain

how marijuana has helped his diagnosis. Also, there would be a $75.00 charged at

that time for a one year renewal o f the medical marijuana recommendation.

K. R espondent next explained a list of different medical providers that

the detective could contact for an examination before returning for his next visit.

Respondent said he had a friend who was a "good acupuncturist" and that she knew

what Responded "needed" and could fax that information directly to Respondent.

Respondent then provided th e detective w i th contact information fo r his

acupuncturist "friend," stating that he only needed to see her once and i f he never saw

her again, Respondent "could careless." Respondent explained that once he received

a validation o f the detective's diagnosis, he would never ask for i t again. The

detective asked how much this visit with the acupuncturist might cost. Respondent

replied "very cheap."

L. R espondent next retrieved a document from his fax machine and

showed it to the detective, stating i t was from his acupuncturist friend concerning

another patient. Respondent covered the patient's name and said he had beendiagnosed with chronic headaches, as well as back and shoulder pain. Respondent

then gave the detective several documents to sign. One was entitled "Informed

Consent Treatment Plan and Objectives." Th is form had several places for the

detective to initial, although Respondent made no effort to explain the content of the

form. The detective merely printed his name and date of birth at the top of the form

and initialed the form where indicated by Respondent. This form contained a pre-

printed list o f acknowledgments that, by signing and/or initialing the form, the

detective was indicating he had done certain things and/or was aware of legal issues

concerning marijuana. The first item was "I have tried multiple drug and medical

regimens wi th unfavorable response." T h i s issue was not discussed with

Respondent, nor did he inquire about it. Similarly, other listed acknowledgments on

this form were not discussed by Respondent as well.

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//

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M. R espondent then provided the detective with another form entitled

"Medical Marijuana of San Diego Physician Statement," upon which the detective

was directed to write his name and date of birth on the top of the form and sign it at

the bottom, along with the date. The form indicated that Respondent was a licensed

California physician, that the detective was a patient under his "medical care and

supervision" for treatment o f a condition identified as "#729-1 .

115 T h i s P h y s i c i a nStatement also was an acknowledgment that Respondent had assessed the detective's

prior medical history and determined that cannabis was providing relief for the

symptoms related t o h i s diagnosis o f "chronic muscle spasms." T h i s

acknowledgment was not true.

N. R espondent next gave the detective a folded wallet-sized version o f

the "Medical Marijuana of San Diego Physician Statement" which also contained the

word "Passport." The detective was instructed to sign and date this document as

well. Respondent also handed the detective a blank envelope and instructed him to

write his name and address on it, stating that the envelope will be used to send a

Medical Marijuana photo ID card to the detective. The detective's photo for this IDcard was then taken. During this process, Respondent's office telephone rang several

times and the detective overheard Respondent confirming that various people were

indeed patients o f his and when they were last seen by him. Respondent explained

to the detective that he was able to remember this information because he had a

photographic memory. The visit then ended and Respondent said he would see the

detective in six months.

5. Respondent informed the detective that condition #729-1 was a diagnosis of "chronicmuscle spasms."

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16. Respondent committed gross negligence in his care and treatment o f patient

"Mark Anderson" which included, but was not limited to, the following:

A. Paragraphs 12 and 15, above, are incorporated by reference as if fully

set forth herein.

B. R esponden t failed to perform a history and good faith examination of

the patient "Marc Anderson;"

C. R espondent failed to provide an adequate informed consent and failed

to provide an adequate explanation of the side effects of medical marijuana to patient

"Marc Anderson;"

D. Respondent failed to maintain proper medical record keeping and

made fraudulent medical record entries in regards to patient "Marc Anderson."

Specifically, Respondent documented in the patient's medical record that some type

of physical examination was done when i t was not; that the patient's neurological

status was within normal limits ("Neuro WNL)" when in fact no neurological

examination was done by Respondent; and that Respondent actually examined the

patient in response to his complaint of "right neck, shoulder and upper back pain"and evaluated the patient's "trigger points" when in fact he did not;

E. Responden t failed to schedule and/or provide for adequate periodic

review and assessment of his treatment plan concerning patient "Marc Anderson's"

claimed medical condition;

F. Responden t made no attempts, or failed to document attempting, any

efforts by him to obtain patient "Marc Anderson's" prior medical records from his

primary care physician in order to verify the patient's alleged medical condition that

he claimed necessitated the need for medical marijuana; and

G. R espondent failed to contact or attempt to contact any of the patient's

prior treating physicians before recommending medical marijuana to him and also

failed to conduct a good faith review of any prior therapies that may have been used.

///

20



PATIENT WILLIAAI ZIEMAN

17. R es ponden t is further subject to disciplinary action under sections 2227 and

2234, as defined by section 2234, subdivision (b), of the Code in that he was grossly negligent in his

care and treatment of patient " William Zieman," as more particularly alleged hereinafter:

A O n or about January 16, 2007, Officer C.W., working undercover,

entered 303 Broadway Suite 204 in the City of Laguna Beach seeking a medical

marijuana recommendation from respondent. Officer C.W. used the fictitious patient

name of "William Zieman." There was no receptionist nor traditional lobby within

the office. There were also a number of other people wait ing to see respondent.

After wait ing approximately two hours, respondent came into the make-shift lobby

area and gathered six people including Officer C.W. Respondent took the six people

to a conference room where he counseled the six as a group. Respondent told the

group they were being group counseled to save time and to give him an opportunity

to explain Proposition 215 and Senate Bill 420. Respondent then passed out

paperwork to a ll the members o f the group to sign. The paperwork consisted o f

disclaimers, notes from respondent and a form entitled "Inform Consent Treatment

Plan and Objectives." When the paperwork was completed, respondent collected his

appointment fee of one hundred fifty dollars ($150.00) per person. Respondent also

informed the group of the "most common" qualify ing medical diagnoses for medical

marijuana. I t appeared to Officer C.W. that respondent was leading the group to tell

them what they should say in order to obtain medical marijuana.

B. A f t e r the group counseling, Officer C.W. had his indiv idual

consultation with respondent. Respondent asked Officer C.W. what qualify ing

medical ailment he had. Officer C.W. responded migraine headaches. Respondent

asked how long ago did the migraine headaches start. O fficer C.W. responded

"about two years ago I had a car accident." Respondent stated, "[o]n a scale from

one to ten, with ten being the most severe pain, what number represents how much

pain you feel during your migraine headaches... nine.. ten?" Respondent started to

21



explain the pain brought him to his knees but was cut off by Respondent suggesting

or reiterating, "nine... ten." Officer C.W. answered "about a nine." Respondent then

asked Officer CM., "[Now often do you have the headaches... one... two times a

week?" Officer CM. answered. "about once a week." Respondent then told Officer

C.W. the next question had to be answered with a "Yes." Respondent then asked

Officer C.W., "[d]o you feel like the potential benefits o f medical marijuana use

would outweigh the health risk?" Office r C.W. replied "Yes." Respondent then

asked Officer C.W. to stand up. Respondent came over to where Officer C.W. was

standing and said he was going to examine him. Respondent told Officer C.W. to

remain still and he placed each ofhis hands on his temples and lightly felt the temple

-area o f my head along with the bridge of the nose and forehead. This took less than

twenty seconds and when he was through, Respondent congratulated Officer C.W.

and stated he was recommending the use o f medical marijuana for his medical

ailment.

18. Respondent committed gross negligence in his care and treatment of patient

William Zieman, which included, but was not limited to, the following:

A. Paragraphs 12 and 17, above, are incorporated by reference as if fully

set forth herein.

B. R espondent failed to perform a history and appropriate examination

of patient "William Zieman;"

C. Respondent failed to maintain proper medical record keeping and

made fraudulent medical record entries for patient "William Zieman." Specifically,

Respondent documented in the patient's medical record that an adequate physical

examination was done when it was not and that the patient was within normal limits

for "Neck," "Lungs/Chest," "CV," and "Neuro" when' in fact these examinations

were not done by Respondent and could not have been done by Respondent during

the extremely brief "examination" o f the patient. Addi tionally, Respondent's

handwritten notes on the Progress Note, which indicates it is for the "Jimenez - Ewa

22



Beach Medical Foundation Clinic," are, in large part, illegible;

D. R e s p o n d e n t failed to provide an adequate informed consent and

discussion o f side effects o f medical marijuana and prompted patient "Wil liam

Zieman" by telling him he needed to answer "yes," to the question "tdjo you feel like

the potential benefits of marijuana use would outweigh the health risk;?"

E. R e s p o n d e n t failed to schedule and/or provide for adequate periodic

review and assessment of his treatment plan concerning patient "William Ziemanls"

claimed medical condition;

F. R e s p o n d e n t failed to obtain an appropriate consultation in that he

made no attempts, or failed to document attempting, any efforts by him to obtain the

patient's prior medical records from his primary care physician in order to verify the

patient's alleged medical condition that he claimed necessitated the need for medical

marijuana and/or he failed to contact or attempt to contact the patient's prior treating

physician or physicians before recommending medical marijuana to him; and

G. R e s p o n d e n t failed to adhere to the standards regarding individualized

advise on how to use medical marijuana by, among other things, recommending a

specific dosage amount, recommending dosage timing, recommending the route of

administration and refer ring t he patient t o such "important" websites as

CAnormlorg, LAnorml.org, OCNorml.org, 18004201aws.com, marijuana-uses.com,

and safeaccessnow.org. Many of the aforementioned websites refer the website user

to the various dispensaries where one can obtain medical marijuana.

SECOND CAUSE FOR DISCIPLINE

(Repeated Negligent Acts)

19. R es ponden t is further subject to disc iplinary action under sections 2227 and

2234, as defined by section 2234, subdivision (c), of the Code, in that he was repeatedly negligent

in his care and treatment ofpatients "Kimberly Summers," "Mark Anderson" and "William Ziem an"

as more particularly alleged hereinafter:

/ / / /

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A. Par agr aphs 12 through 18, above, are hereby incorporated by reference

as i f fully set forth herein.

B. R e s p o n d e n t failed to provide adequate informed consent as to patients

"Kimberly Summers," "Mark Anderson" and "William Zieman;" and

C. R e s p o n d e n t failed to adequately discuss with patients "Kimberly

Summers," "Mark Anderson" and "William Zieman" the potential side effects of

using marijuana.

THIRD CAUSE FOR DISCIPLINE

(Incompetence)

90. R es pondent is further subject to disciplinary action under sections 2227 and

2234, as defined by section 2234, subdivision (d) o f the Code, in that he displayed a lack o f

knowledge in his care and treatment o f patients "Kimber ly Summers," "Mark Anderson" and

"William Zieman," as more particularly alleged hereinafter:

A. Pa r agr aphs 12 through 19, above, are incorporated by reference as i f

fully set forth herein.

FOURTH CAUSE FOR DISCIPLINE

(Dishonesty or Corruption)

Respondent is further subject to disciplinary action under sections 2227 and

2234, as defined by section 2234, subdivision (e) of the Code, in that he committed an act or acts of

dishonesty or corruption in his care and treatment o f patients "Kimber ly Summers," "Mar k

Anderson" and "Will iam Zieman," as more particularly alleged hereinafter:

A. Par agr aphs 12 through 20, above, are hereby incorporated by reference

as i f fully set forth herein.

B. R e s p o n d e n t committed an act or acts of dishonesty or corruption in

regards to patients "Kimberly Summers," "Marc Anderson" and "William Zieman"

as discussed more fully below:

(1) Respondent committed an act or acts o f dishonesty or corruption by

directing the aforementioned patients to sign a document entitled "Inform Consent

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Treatment Plan and Objectives" without adequate discussion regarding the contents

of the document. This document indicated, among other things, that Respondent had

"performed a good faith examination," that the patient "meet [sic] the criteria for the

medicinal use use [sic] of cannabis," that "you have informed me that cannabis is

providing relief/may provide relief for related symptoms" associated with the alleged

qualify ing diagnosis and that "Dr. Jimenez and Ihave discussed the medical benefits

and risks o f cannabis use as a treatment for my conditions, as well as other

interventions." These statements were known by Respondent to be false at the time

he directed patients "Kimber ly Summers," "Marc Anderson" and "William Zieman"

to sign the document in his presence and as a condition to receive a medical

marijuana recommendation.

(2) R e s pond en t committed an act or acts of dishonesty or corruption when

he signed and directed his patients to sign the 8" x 11 'A" "Medical Marijuana of San

Diego Physician Statement" and smaller passport version o f the same document.

These documents indicated, among other things, that "my patient has informed me

that cannabis is providing / may provide relief for related symptoms" of the alleged

qualifying diagnosis and " [ w ] e have discussed the medical benefits and risks of

cannabis use as a treatment for this [the alleged qualifying diagnosis] condition, as

well as other interventions." These statements were known by Respondent to be

false at the time he signed the documents related to patients "Kimberly Summers,"

"Marc Anderson" and "Wil l iam Zieman" receiving medical mari juana

recommendations.

C. R e s p o n d e n t committed acts of dishonesty or corruption in regards to

patient "Marc Anderson." Spec ifically, Respondent documented in the patient's

medical record that some type of physical examination was done when it was not;

that the patient's neurological status was within normal limits ("Neuro WNL)" when

in fact no neurological examination was done by Respondent; and that Respondent

actually examined the patient in response to his complaint of "right neck, shoulder

25



and upper back pain" and evaluated the patient's "trigger points" when in fact he did

not.

D. Respondent committed an act or acts of dishonesty or c o n

-

u p t i o n i negards to patient "William Zieman." Specifically, Respondent documented in the

patient's medical record that an adequate physical examination was done when it was

not and that the patient was within normal limits for "Neck," "Lungs/Chest," "CV"

and "Neuro" when in fact these examinations were not done by Respondent and

could not have been done by Respondent during the extremely brief "examination"

of the patient.

FIFTH CAUSE FOR DISCIPLINE

(False Representations)

29. Re spondent is further subject to disciplinary action u n d e r

.

s e c t i o n s 2 2 2 7 a n d234, as defined by section 2261 of the Code, in that he knowingly made and/or signed documents

related to the practice of medicine that falsely represented the existence or nonexistence o f facts

related to his care and treatment of patients "Kimberly Summers," "Mark Anderson" and "Will iam

Zieman" as more particularly alleged hereinafter:A. Paragraphs 12 through 21, above, are hereby incorporated by reference

as if fully set forth herein.

B. Respondent knowingly made and/or signed documents related to the

practice of medicine that falsely represented the existence or nonexistence o f facts

when he directed the aforementioned patients to sign a document entitled "Inform

Consent Treatment Plan and Objectives" without adequate discussion regarding the

contents o f the document. Th i s document indicated, among other things, that

Respondent had "performed a good faith examination," that the patient "meet [sic]

the criteria for the medicinal use use [sic] of cannabis," that "you have informed me

that cannabis is providing relief/may provide relief for related symptoms" associated

with the alleged qualifying diagnosis and that "Dr. Jimenez and I have discussed the

medical benefits and risks of cannabis use as a treatment for my conditions, as well

26



as other interventions." These statements were known by Respondent to be false at

the time he directed patients "Kimberly Summers," "Marc Anderson" and "William

Zieman" to sign the document i n order to receive a medical marijuana

recommendation.

C. Respondent knowingly made and/or signed documents related to the

practice of medicine that falsely represented the existence or nonexistence of facts

when signed and directed his patients to sign the 8" x 11 'A" "Medical Marijuana of

San Diego Physician Statement" and smaller passport version of the same document.

These documents indicated, among other things, that "my patient has informed me

that cannabis is providing / may provide relief for related symptoms" of the alleged

qualifying diagnosis and "[w]e have discussed the medical benefits and risks of

cannabis use as a treatment for this [the alleged qualifying diagnosis] condition, as

well as other interventions." These statements were known by Respondent to be

false at the time he signed the documents related to patients "Kimberly Summers,"

"Marc Anderson" and "Wi ll ia m Zieman" receiving medical marijuana

recommendations.

D. Respondent knowingly made and/or signed documents related to the


in regards to patient "Marc -Anderson." Specifically, Respondent documented in the

patient's medical record that some type of physical examination was done when i t

was not; that the patient's neurological status was within normal l imits ("Neuro

WM.)" when in fact no neurological examination was done by Respondent; and that

Respondent actually examined the patient in response to his complaint of "right necic,

shoulder and upper back pain" and evaluated the patient's "trigger points" when in

fact he did not.

E. Responden t knowingly made and/or signed documents related to the


in regards to patient "William Zieman." Specifically, Respondent documented in the

27



patient's medical record that an adequate physi cal examination was done when it was




of the patient.

SIXTH CAUSE FOR DISCIPLIN E

(Failure to Maintain Adequate and Accurate Records)

23. Respondent is further subject to disciplinary action under sections 22.27 and

2234, as defined by section 2266 of the Code, for his failure to maintain adequate and accurate

medical records for pati ents "Kimberly Summers," "Mark Anderson" and "William Zieman" as more

particularly alleged hereinafter:

A. Paragraphs 12 through 22, above, are hereby incorporated by reference

as if fully set forth herein.

B. Respo nde n t failed to maintain adequate and accurate medical records

when he directed the aforementioned patients to sign a document entitled "Inform

Consent Treatment Plan and Objectives" without adequate discussion regarding the

contents o f the document. Th i s document indicated, among other things, that

Respondent had "performed a good faith examination," that the patient "meet [sic]

the criteria for the medicinal use use [sic] of cannabis," that "you have informed me

that cannabis is providing relief/may provide relief for related symptoms" associated

with the alleged qualifying diagnosis and that "Dr. Jimenez and I have discussed the

medical benefits and risks of cannabis use as a treatment for my conditions, as well

as other interventions." These statements were known by Respondent to be false at

the time he directed patients "Kimberly Summers," "Marc Anderson" and "William

Zi eman" to sign the document and as a condition to receive a medical marijuana

recommendation.

C. R espondent failed to maintain adequate and accurate medical records

when he signed and directed his patients to sign the 8" x 11 1/2" "Medical Marijuana



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of San Diego Physician Statement" and smaller passport version o f the same

document. These documents indicated, among other things, that "my patient has

informed me that cannabis is providing/may provide relief for related symptoms"

of the alleged qualifying diagnosis and "[w]e have discussed the medical benefits

and risks of cannabis use as a treatment for this [the alleged qualifying diagnosis]

condition, as well as other interventions." These statements were known by

Respondent to be false at the time he signed the documents related to patients

"Kimberly Summers," "Marc Anderson" and "Will iam Zieman" receiving medical

marijuana recommendations.

D. Respondent failed to maintain adequate and accurate medical records

in regards to patient "Marc Anderson." Specifically, Respondent documented in the

patient's medical record that some type of physical examination was done when it

was not; that the patient's neurological status was within normal limits ("Neuro

WNL)" when in fact no neurological examination was done by Respondent; and that

Respondent actually examined the patient in response to his complaint of "right neck,

shoulder and upper back pain" and evaluated the patient's "trigger points" when in

fact he did not,

E. R espondent failed to maintain adequate and accurate medical records

in regards to patient "William Zieman." Specifically, Respondent documented in the

patient's medical record that an adequate physical examination was done when it was




of the patient. Additionally, Respondent's handwritten notes on the Progress Note,

which indicates it is for the "Jimenez - Ewa Beach Medical Foundation Clinic," are,

in large part, illegible;

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PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein

alleged and that following the hearing, the Osteopathic Medical Board issue a decision:

1. R e v o k i n g or suspending Osteopathic Physician's and Surgeon's Certificate

Number 20A6499, issued to ALFONSO JIMENEZ, D.O.,

2. O r d e r i n g Respondent to pay the Board th e reasonable costs o f the

investigation and enforcement of this case, and, i f placed on probation, the costs o f probation

monitoring; and

3. T a k i n g such other and further action as deemed necessary and proper.

DATED: 7 /

2 - -

C ( a

r

o

" /

DO' A U D J. KIIPAN,Ex ut iv e Director . /JOsteopathic MedicatBoard of CaliforniaState of California

Complainant

DO Board Jimenez

Documents

Transcript of DO Board Jimenez