By Maria Alicia Gaura, Chronicle Staff Writer

chronletters@sfgate.com

http://www.sfgate.com/chronicle/

March 28, 1998

SAN JOSE POLICE SCAN POT FILES

Patients, Doctors Protest Probe Of Cannabis Center

San Jose police are going through patients’ files seized this week from the county’s only medical marijuana clinic and calling doctors to determine whether the drug was indeed recommended for their patients.

The seizure of the confidential records from the Santa Clara County Medical Cannabis Center and the telephone calls to doctors listed in the files have raised concerns among AIDS patients who fear being identified. Physicians also say they worry about losing their federal licenses to prescribe drugs.

"What are they doing with our files?" said one distraught patient, who declined to give his name. "Are we facing retaliation now? Will we face surveillance? They have my address now, and my phone number, and information about my illness." The man was one of many patients who gathered in protest at the year-old Cannabis Center yesterday.

Police raided the center Monday and arrested executive director and Cannabis Center co-founder Peter Baez, charging him with selling marijuana to a patient without a valid physician’s recommendation.

Baez disputes the charges, contending that three center workers had received an oral recommendation from the patient’s doctor.

Although the center was not closed Monday, police seized all patient files and then returned copies of the files to center workers.

According to Baez, between 150 and 175 patients have told him they plan to file a class-action lawsuit charging the San Jose Police Department with violating the confidentiality of their medical records. Baez said he would join the suit, as his personal medical files were also taken. (Ed. Note: This is a very important development.)

Police and officials from the Santa Clara County district attorney’s office confirmed that police investigators are looking through the approximately 270 client files seized from the center Monday and are calling doctors to ask for confirmation of clients’ illnesses, as well as to discover whether they recommended marijuana use.

Deputy District Attorney Kristina Warcholski said yesterday that patients should not be apprehensive about the fate of their files. "We would like the AIDS community to know that we are not interested in disseminating information about anyone’s medical history," she said. "We are only interested as to whether a violation of law concerning the dispensing of medical marijuana took place."

According to county health officer and AIDS physician Martin Fenstersheib, the only ethical response a doctor could make to such a request is to say that patient information is confidential. That is the response police have gotten after calling his clinic this week, Fenstersheib said.

Doctors are also fearful of the police calls because although state law allows use of medical marijuana, the law is being challenged by the federal government.

Marijuana use for any purpose is still illegal under federal law, and physicians must apply to the federal government to maintain their licenses to prescribe drugs.

If doctors refuse to divulge the requested information, police will ask patients to sign a release of their medical records, Warcholski said. And if patients refuse to comply, "We will try to otherwise determine whether the person has a legitimate right to marijuana," she said.

This week’s raid and arrest at the center came as a surprise to center volunteers, who said the relationship between the center, the city and local police has been unusually cooperative for the past year.

Baez and Jesse Garcia, the founders of the center, worked with city officials to draft strict city rules governing the distribution of medical marijuana after state voters approved Proposition 215, which legalized its use. Center workers have successfully screened out not only five prescription forgers but several federal agents who attempted to infiltrate the operation.
(Ed. note: Your tax dollars at work.)

Baez’s arrest was shocking to clients and volunteers because he was cooperating with the police investigation and also because he suffers from colon cancer and had undergone surgery shortly before his arrest.

Baez and clients of the center are worried that the arrest and raid mean that the support of city officials, which they once enjoyed, has evaporated.

"The government is getting between me and my doctor," said Don Altier, a San Jose resident suffering from amyotrophic lateral sclerosis, also known as Lou Gehrig’s disease. "No one should have access to my records without my approval, and I’m going to tell my doctor not to release anything."

Fenstersheib called the recent turn of events unfortunate. "Things have deteriorated now that the federal government is trying to close the medical marijuana centers (in six California cities)," he said. "It’s particularly unfortunate because, at the bottom of this, it’s the patients who are going to suffer."

Police spokesman Chris Moore said that police have no intention of stopping the legitimate use of medical marijuana in San Jose. "We are not denying access to anyone," Moore said. "We are doing our best as a city to make sure it is done in an appropriate place and manner. But they’ve got to follow the law, and we can’t turn a blind eye to that."