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 License No. 20A6499 Respondent DECISION

Case No. 09-2006-001760

0A1-1 No. 2007100333

The attached Proposed Decision of the Administrative Law Judge is hereby adopted by the Osteopathic Medical Board of California as its DeciSion in the aboveentitled matter.

This Decision shall become effective on a l 2 / 11 'IT IS SO ORDERED 1 , 1 :e 0 2 1 , 64 0 i 1 9 0 I ) a , 4 D g i n ) GERALD11)1EO'SHEA, D.O., PRESIDENT OSTEOPATFLIC MEDICAL BOARD OF CALIFORNIA 2

F IL E D MR11 2099 A osn-coplit IocM D A B A D T- E I L O R C

OFCALIFORNIA

, , _ 1 1 1 , 0

BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA STATE OF CALIFORNIA

In the Matter of the First Amended Accusation Against: Case No. 09-2006-001760 ALFONSO JIMENEZ, D.O. 420 K Street, #13 San Diego, CA 92101 Osteopathic Physician' and Surgeon's Certicate No. 20A6499 Respondent. OAH No. 2007100333

PROPOSED DECISION Administrative Law Judge Vallera J. Johnson, State of California, Ofce of Administrative 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., Pacic Law Center, and Bruce Margolin, Esq., The Law Ofces of Bruce Margolin, represented Respondent. The matter was submitted on January 30, 2009. 1
1 O v e r Complainant's objection, the Administrative Law Judge granted Respondent's request to review Complainant's Power Point Presentation and make a decision about ling a brief no later than January 7, 2009 to respond to the cases cited in Complainant's Closing Argument. Complainant led a copy of the Power Point Presentation of Complainant's Closing Argument; it was marked Exhibit 37. By Memorandum, dated December 17, 2008, marked Exhibit 38, Respondent notied the Administrative Law Judge that he would respond to Complainant. On January 8, 2009, Respondent's Supplemental Closing Memorandum of Points and Authorities (Closing Memorandum) was led and marked Exhibit 39; the Closing Memorandum violated the Administrative Law Judge's Order and was therefore disregarded. Complainant's Post-Trial Brief was led on January 14, 2009 and marked Exhibit 40. Complainant made a Request for Costs that was not adequately addressed during the hearing by either party. By letter, dated January 13, 2009, the Administrative Law Judge ordered the parties to le a Memorandum of 1

FACTUAL FINDINGS 1. D o n a l d J. Krpan, D.O. (Complainant) led Accusation and First Amended Accusation, Case Number 09-2006-001760, dated September 17, 2007, and July 25, 2008 respectively, in his ofcial capacity as the Executive Director, Osteopathic Medical Board of California (Osteopathic Medical Board) against Alfonso Jimenez, D.O. (Respondent). Respondent led a Notice of Defense, dated September 21, 2007, requesting a heating. 2, O n September 26, 1993, the Osteopathic Medical Board issued Osteopathic Physician's and Surgeon's Certicate Number 20A6499 to Respondent. A t all times relevant herein, said Osteopathic Physician's and Surgeon's Certicate was in full force and effect and will expire on May 31, 2009, unless renewed. 3. C o m p l a i n a n t alleged that Respondent's care and treatment of three patients was below the standard of care and constituted gross negligence, repeated negligent acts, incompetence, dishonesty or corruption, false representation and failure to maintain adequate records 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 "Qualied 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 4. R e s p o n d e n t is licensed to practice medicine in the States of California and Hawaii. He attended Michigan State University Osteopathic Medical School, completed a one year 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 threeyear rotating residency program at the University of Hawaii with an emphasis in family practice, emergency room medicine and urgent care. After completing his residency, Respondent was hired as a clinical professor by the University of Hawaii and began working as a family practice physician in a clinic in Ewa Beach. 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: Recoverable Costs was led and marked Exhibit 41. Respondent did not le a response. On January 30, 2009, the record was closed, and the matter was submitted.

Respondent worked briey for the Santa Barbara Health Foundation and thereafter for Shaul Rees-Stealy Medical Group as an urgent care doctor until he "retired" in November 2006. Respondent is on staff at St. Francis Medical Center-West, formerly known as Hawaii Medical Center-West; between 2000 and 2002, he served as this hospital's vice-president of medical staff and chairman of the credentials committee. He is a fellow of the American Academy of Family Practice and a diplomate of the American Board of Family Practice, certied in 1996 and recertied in 2003. His professional afliations include the American Academy of Family Physicians, California Academy of Family Physicians and Hawaii Academy of Family Physicians. 5. R e s p o n d e n t operates medical marijuana clinics in the States of California and Hawaii. Those in California are located in Orange and Los Angeles Counties. The clinics operate under the names of Medical Marijuana of Orange County, Medical Marijuana of Los Angeles County and Medical Marijuana of Hawaii. In February 2005, Respondent opened his rst marijuana clinic under the name of Medical Marijuana of San Diego County, in San Diego County, and closed it in January 2007. Respondent operates his medical marijuana clinics through several websites. The pertinent websites are www.medicalmarijuanaofsandiego.com; www.medicalmarijuanaoforangecounty.com; www.medicalmarijuanaoosangeles.com; www.medicalmarijuanaofsantabarbara.com; and www.medicalmarijuanaofhawaii.com. In addition to the "medical marijuana" websites, there are the following websites: www.clriirnenez.org (contains his curriculum vitae along with links to payment options for prequalication and the face-to-face visit with Respondent and another link for the "history ofhemp"); and WWW.1888215herb.com (links to the prequalication site and advertises web based medical marijuana verications [open 24 hours]). Through his websites, among other things, potential patients can 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 purchase such items as Respondent's "Medical Marijuana Guide". "Medical h i s 2 I n Marijuana Guide," information is provided on, among other things, different methods of administering 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 Respondent's medical marijuana clinics direct the website users to cannabis websites which, among other things, advise website users of the various dispensaries and cooperatives where marijuana can be purchased, i f the purchaser has a medical marijuana recommendation. Respondent classied himself as a "Qualied Medical Marijuana Examiner" As of January 28, 2008, he had written more than six thousand (6,000) medical marijuana recommendations. Respondent testied that his clinic had written over eight thousand

Respondent testied that his medical marijuana guide was available until April 2008.

(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 Ofce became aware of the proliferation of medical marijuana dispensaries that facilitated the sale of marijuana to citizens who presented medical marijuana recommendations issued by local physicians within San Diego County. Upon preliminary investigation, it was determined that the majority of 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 three percent (3%) of such recommendations were issued for more serious medical conditions, such as cancer, glaucoma and AIDS. Based on the above preliminary investigative ndings, the SDPD, in conjunction with the San Diego District Attorney's Ofce, initiated an undercover investigation of several San Diego physicians. These doctors were among those identied as issuing a signicant number of marijuana recommendations to young patients who appeared not to have serious medical conditions. Respondent was one of the physicians so identied. His business name was listed as "Medical Marijuana of San Diego," located at 311 4 California. n u e , th A v e S a n D i e g o , The Compassionate Use Act 7. O n November 5, 1996, the voters of California passed Proposition 215, the Compassionate Use Act of 1996, also known as the Medical Marijuana Initiative (Compassionate Use Act), codied at Health and Safety Code section 11362.5, et seq. The Compassionate Use Act provides that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benet from the use of marijuana. This law makes provision for the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. Also, the Compassionate Use Act afrms public policy against conduct that endangers others or the diversion of marijuana for non-medical purposes. I t is left for the physician, as gatekeeper, to ensure that marijuana is used for "medical purposes" to benet the seriously ill.3 Under these circumstances, it is presumed
3 I n Conant v. Walters ( 9 ' anticipated under the Act: 11 Cir. 2 0 0 2 ) law . 3 0 "The state F in question does not legalize use of marijuana by anyone who believes he has a medical 9 need for it. Rather, state law is closely calibrated to exempt from regulation only patients who have 3 d consulted a physician. And the physician may only recommend marijuana when he has made an 6 2 individualized and bona de determination that the patient is within the small group that may benet from 9 , J u its use.t s i c e K o z i n s k i d e s c r 4 i b e d t h

that physicians who recommend marijuana under the Compassionate Use Act will follow accepted 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). the T h e 4 Compassionate Use Act by clarifying the scope of its application, facilitating the prompt M M P s e e k s identication of qualied patients/caregivers and promoting uniform and consistent t o i m p l e m e n t application 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 ill residents of the state, who have the oral or written approval or recommendation of a physician to use marijuana for medical purposes without fear of criminal liability." denes 5 I t a "serious medical condition" for the purposes of marijuana recommendations as: AIDS, anorexia, arthritis, cachexia, cancer, chronic pain, glaucoma, migraine, persistent muscle 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 one or more major life activities as dened 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. 6 There 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 medical practice standards to be followed in making such a recommendation.. 9. R e s p o n d e n t argued that this case was politically motivated, directed by Federal and State government ofcials opposed to Proposition 215 and conducted from the outset 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 patient for medical purposes; including e v of , 7 h o wthreate rcriminal prosecution, revocation of Dmg Enforcement Administration registrations t h i 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 l a w p r o v i d e s n If a doctor abuses this privilege by recommending marijuana without examining the patient, without o conducting tests, without considering the patient's medical history or without following standard medical p r procedures, he will run afoul of state as well as federal law. But doctors who recommend medical o t marijuana to patients after complying with accepted medical procedures are not acting as drug dealers; they. e c t i are acting in their professional role in conformity with the standards of care of the state where they are o n licensed to practice medicine." f4 r Health and Safety Code, Sections 11362.711362.83 o m f5 e http:www.leginfo.ca.govipub/03-04/billisenisb_0401-0450/sh2120_bill_20031012_chapteredhtmi d e 6 r a l7 Health and Safety Code section 11362.5, subdivision (c) p r o s e c 5 u t i

medical m a r i j u a n a ,of law enforcement themselves. recommendatio Considering the facts in the foregoing paragraph, every effort has been made to focus ns a n d on determining the practice standards that govern medical marijuana recommendations and a r e whether a r f violated the standard of care, the primary issue in this case. Therefore f e Respondent u levidence proffered on the history, motivation and any other matters underlying or relating to tthe investigation and prosecution of this case, though considered, has been largely h a t disregarded. , i f Standard of Practice Issues t h e y 10. S i n c e enactment of the Compassionate Use Act, the Medical Board of d o California (Medical Board) has issued statements to assist in dening the responsibilities of ,physicians who choose to recommend medical marijuana. I t is the same standard which tpertains to treatment or prescribing any other medication, to wit: h e y w i h i sto ry and good faith examination of the patient l l development of a treatment plan with objectives b e provision of informed consent including discussion of side effects c o periodic review of the treatment's efcacy m e consultation, as necessary t a proper record keeping that supports the decision to recommend the use of r g medical marijuana e t s 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 is not the primary care physician, then it is incumbent on him to consult with the patient's primary care physician or to obtain the appropriate medical records to conrm the patient's underlying diagnosis and prior treatment history. The Medical Board will not take action against physicians who make medical marijuana recommendations in accordance with the standards o f 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 action against the physician. The California Medical Association's On-Call Document #1315, entitled "The Compassionate Use Act of 1996: The Medical Marijuana Initiative" (CMA On-Call Document #1315), discusses the questions most likely to be asked by physicians about the laws and standards for medical marijuana recommendations. 11. Respondent argued that his standard of practice formedical marijuana recommendations was based on his education, training and experience.

In 2005, while practicing in Santa Barbara, Respondent had patients who were taking medical marijuana for a variety of conditions, including AIDS, depression and "dying." He himself obtained a recommendation for medical marijuana based on a diagnosis of "adjustment disorder with depressed mood;" Respondent testied that the physician who provided 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 life." In 2006, when he opened his rst medical marijuana clinic, Respondent had been licensed 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 California physicians who prescribe any medication or treatment, the potential risks associated with medical marijuana use, Medical Board statements regarding making medical marijuana recommendations and the CMA On-Call Document 111315. H e testied that he made the decision to "lower" the Medical Board's standard of 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 felt he needed to obtain sufcient information to determine whether his patients had a condition that qualied 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 relied on 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 proper diagnosis. Further, his patients presented with chronic, not acute conditions. He did not review medical records or consult with treating physicians in order to make the initial recommendation; he arranged for follow-up visits and instructed patients to return with medical records to conrm diagnoses. Respondent issued rst recommendations for six months, 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 required to gather medical records or consult with primary care and/or treating physicians in order to make medical marijuana recommendations. Expert witnesses 13. J a m e s P. MacDonald, M.D. (Dr. MacDonald), testied as Complainant's expert witness. He obtained his undergraduate and medical education at Harvard University; he completed a residency in family practice and a primary care sports medicine fellowship. He has been licensed in the State of California since 1999 and in Massachusetts since 2007.

Dr. MacDonald was board certied in family medicine in 2000 and re-certied in 2006. He is a fellow of the American Academy of Family Practice. Other relevant professional afliations include the American Academy of Family Physicians and the California Academy of Family Physicians. On Dr. MacDonald's curriculum vitae, under post-graduate, advanced medical training/licenses, relevant to this case, he lists Academic Academy of Addiction Psychiatry Buprenorphine and Ofce-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 athletic teams. His clinical duties include routine primary care on a continuing basis as well as management of the health care center's urgent care facility. Dr. MacDonald demonstrated that he understands the laws and the potential benets and consequences of making medical marijuana recommendations. Despite the fact that it is a highly political issue, Dr. MacDonald has recommended medicinal cannabis to four seriously ill patients for whom he provided primary care and treatment. In addition, marijuana is used recreationally frequently in his community and among his patients; as a result, 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 family practitioners. In his opinion, the standard of practice for recommending marijuana as a treatment 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 the risks/benets, effects/side effects of medications, develops a treatment plan with provision for future monitoring by the consultant or the primary care physician, obtains patient records and prepares and maintains adequate and accurate records of the foregoing. Dr. MacDonald's opinions are consistent with the 2004 Medical Board's Statement and CMA On-Call Document #1315 (Finding 9) and conrms existing accepted medical standards 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 marijuana recommendation.

Dr. MacDonald took the necessary CME course and became DEA certied to use Buprenorphine in the context of ofce-based treatment of opioid dependence.

The physician is required to obtain a target history (history of the presenting illness), cardiac history, and pulmonary history; and, i f the patient presents with some form of psychosis or acute anxiety, a psychiatric history is required. A good faith physical examination must be performed that includes obtaining vital signs (blood pressure, respiratory rate and temperature), pulmonary, cardiac and mental status examinations arid target examination (for the presenting condition and any other medical condition that the physician encounters during the history or physical examination). A physician is required to prepare and maintain legible, honest, accurate and complete medical records. Regarding the informed consent, the physician is required to educate the patient regarding the use of medical marijuana, explain the side effects of this controlled substance and give the patient an opportunity to ask questions. The physician is required to monitor the patient to determine t h e of the drug and whether medical marijuana is the modality that he should continue to use; . there must be,a t s / s i d e e f to do so. The monitoring may be performed by the b e n e reasonable timeframe f e c t s patient's consultant or primary physician. D r. MacDonald did not state a specic period of time that would be appropriate between the issuance of the recommendation and the followup visit but testied that the standard of care requires that it occur more frequently than every six months. Prior to making a medical marijuana recommendation, a physician/consultant is required to communicate with the patient's primary care and/or treating physician and obtain medical records to conrm the diagnosis and obtain information about prior treatments for the condition and determine whether the primary care, treating or consulting physician will do the follow-up. A medical marijuana recommendation is not a prescription. I t is a deviation from the standard of care to direct a patient to dispensaries, aid in obtaining the substance, and give individualized advice about scheduling, dosing, routes of administration or amounts of marijuana a patient can possess. 16. D a v i d Bearman, M.D. (Dr. Bearman) testied as the expert witness on behalf of Respondent. D r. Bearman graduated from University of Washington School of Medicine and has been licensed by the Medical Board since 1968. He has held a variety of administrative positions, made numerous presentations at hospitals and conferences, taught courses related to substance abuse and has written a variety of articles. Since 2000, he has had a part-time solo medical practice (three days a week) that he described as focusing on "pain management, addiction medicine and forensic medicine." He is a member of the California Medical Association and a former member of various State and County Advisory Committees, including Governor Reagan's Advisory Committee on Drug Abuse, Santa Barbara County Drug Abuse Advisory Committee, San 9

Diego County Drug Abuse Advisory Committee, Chair, Health Subcommittee, Santa Barbara County Drug Abuse Treatment and Prevention Master Plan Committee; no evidence was offered to establish when he served on any committee or the duration of his service. Relevant to this case, Dr. Bearrnan testied that he has thirty (30) years experience in drug abuse professor of t r e a t m substance abuse courses at the University of California - San Francisco, University of CaliforniaSanta Barbara and San Diego State University. ent/ preven t i o n Dr. Bearman has been making medical marijuana recommendations since 2000; iapproximately twenty-ve percent (25%) of his patients are referrals from physicians who n c are u d l reluctant to make such recommendations. I n eight years, in his practice, he has made between 1,500 and 1,800 medical marijuana recommendations. i n g H a i g h 17. D r . Bearman is knowledgeable of the Medical Board Statements regarding t recommending medical marijuana and CMA On-Call Document #1315. In his opinion, there - insufcient scientic information and clear standards under the Medical Board's is A s h for physicians to make medical marijuana recommendations. Further, the Medical guidelines b u guidelines are too rigid and not practical. Board's r y D Dr. Bearman and several colleagues established the American Academy of rCannabinoid Medicine (AACM) in or about August 2007. The goal of the organization is to u provide sufcient scientic and legal information to physicians so that they will be g comfortable making medical marijuana recommendations. AAC M is at the development T stage and has not completed the process necessary to obtain acceptance in the medical rcommunity. Though the organization has developed standards for making medical marijuana e recommendations, said standards have not been nalized. a Dr. Bearman believes that medical marijuana is a safer treatment modality than other t controlled substances and, therefore, does not require imposition of the Medical Board's m standards; he offered no scientic evidence in support of his position. Among other things, e in n his opinion, an extensive physical examination including vital signs is not necessary, and it tis not below the standard of care to make medical marijuana recommendations for six months or longer. Nevertheless, overall, his standard of practice and those of AACM are P consistent with the Medical Board's. r o 18. I n rendering his opinions, Dr. Bearman relied on police reports, several g discussions that he had with Respondent and a typed transcript of Respondent's medical r records because the charts were illegible. Presumably, Respondent translated his medical a records for Dr. Bearman's review. m a In some instances, Dr. Bearman's testimony was rambling and evasive. He had a n poor command of the facts. Dr. Bearman did not disagree with Dr. MacDonald's opinions d admitted that Respondent deviated from the standard of care. He testied that the and AACM guidelines and his standard of practice were the gold standards and that 10

Respondent's deviations were minor, but offered insufcient evidence to establish that anything 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, 14 Bearman's. 3 1 5 , 20. T h e standard of practice for conducting a medical marijuana evaluation is 1 identical to that followed by a physician when he recommends any other medication or 6 , treatment. The standard applies regardless of whether the physician is acting as a treating or 1 consulting physician. The medical marijuana evaluation is focused on the patient's 7 presenting condition but it does not disregard accepted standards of medical responsibility; a these standards include taking a history and conducting a physical examination concerning n the presenting complaint, development of a treatment plan with objectives, securing of d informed consent, periodic review of the treatment's efcacy and proper record keeping. In 1 summary, the standard of practice for a physician recommending marijuana to a patient is the 8 same as pertains to recommending any other treatment or medication. ) , Patient Kimberly Summers D r 21. O n May 16, 2006, SDPD Detective Kimber Lea Hammond, now known as . Kimber Lea Bonilla (Detective Hammond), identication number 4931, posed as patient M Kimberly Summers (Patient Summers), and called to schedule an appointment to see a Respondent in his San Diego ofce. Detective Hammond scheduled the appointment for c Saturday, May 20, 2006 at 10:30 a.m. in Respondent's San Diego clinic D o 22. O n May 20, 2006, at approximately 10:00 a.m., Detectives Hammond and n Shannon Boyce (Detective Boyce) entered Respondent's medical ofce at 311- 4 a A also identied as "Pioneer Warehouse Lofts," a secure building. On the building #208, v e n u e th lregister for ofce #208 was the initials "MMSD." Detective Hammond pushed the doorbell for d this ofce. A male voice, later identied as Respondent, answered and instructed them to 'proceed to ofce #208. s t - 2 3 . U p o n reaching ofce #208, the detectives found the door cracked open, and a Hispanic male inside sitting at a desk. The room was "L " shaped and small; one side was ten e feet by six feet and the other eight feet by six feet. There were two chairs in front of the s tdesk, and additional chairs in front of the door into the room. Upon entering the room, the iHispanic male, later identied as Respondent, asked the detectives i f they were there to obtain medical marijuana recommendations. Detective Hammond answered afrmatively. m Respondent responded that he needed $150.00 and identication from each of them. o Detective Boyce told Respondent that he wanted to be Detective Harmnond's caregiver. n Respondent asked the detectives i f they had completed the online paperwork. Detective y Hammond explained that she had checked his website but had not completed the online w paperwork. She handed Respondent $200.00 in cash. Respondent said it was too much a money; her recommendation would cost $150.00, and Detective Boyce's caregiver certicate s would be $25.00. Respondent gave Detective Hammond change and a receipt. m o 11 r

24. D e te c ti v e Hammond introduced herself to Respondent as "Kimberly Summers" and asked his name. H e replied "I'm Dr. Jimenez." Respondent gave each detective a cigarette lighter and an ashtray that was pre-printed with "MMSD Medicalmarijuanaofsandiego.com;" Respondent told Detective Boyce that i f he received a recommendation to be a caregiver, he should not smoke marijuana; 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 nished explaining everything to them. Then, Respondent gave them a summary of medical marijuana law and policy in California. 25. Respondent asked Detective Hammond what her medical condition was, and she replied "insomnia." He recorded her complaint as "chronic insomnia" on her medical chart. He asked who her doctor was; she stated she believed it was "Boone." Respondent wrote 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 had a 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 six months and told her to return in six months. Further, he told her that, when she returned, he wanted her to bring documentation from a doctor that stated "chronic insomnia" and to make sure the doctor wrote "chronic insomnia" on the documentation. Respondent told her that when she returned with the documentation and paid an additional $75.00, he would give her another medical marijuana recommendation. 26. Respondent gave Detective Hammond a form entitled "Inform Consent Treatment Plan and Objectives" (Informed Consent) which had several slash marks on it. He instructed Detective Hammond to initial the slash marks. She asked i f she should read the form rst; he replied she should initial where indicated since he had explained everything to her. She initialed the form as he directed. Respondent stated he would give her a copy of the form, 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. Specically, 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 he asked her if she drank alcohol, detective Hammond said occasionally. Respondent asked if there was a history of alcoholism in her family, detective Hammond told him there was. When asked whether she did drugs, heroin or whether she was depressed, she said no. Respondent asked if there was a history of depression in the family, detective Hammond said there was not.

12

unfavorable responses. In fact, Respondent did not ask Detective Hammond if she tried any other medications nor did she provide this information. Detective Hammond initialed that it was illegal to transport marijuana across state lines, on airplanes or on cruise ships but she could transport it in the trunk of a car. When Respondent started to explain how to transport marijuana in a truck, he asked her i f she drove a truck, and she replied "no." Respondent told her not to worry about it then, just make sure she kept the marijuana in the trunk of her car. Otherwise, he did not explain transportation of marijuana. Also, Detective Hammond initialed that marijuana could be grown in her house or her caregiver'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 plants they were authorized to use and explained that they could possess up to eight marijuana. o u n c e sSheoinitialed this on the form. f Detective Hammond initialed that marijuana could affect her judgment and reaction times; 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 explain the foregoing to her. He did not discuss with her what effect, i f any, taking "Lunesta," a prescription sleeping pill, would have on her body when also using medical marijuana. Detective Hammond initialed that she was aware that marijuana was authorized to be used for medical purposes under State law but was restricted under Federal law. Respondent did not explain the restriction under Federal law. The Informed Consent 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 specied diagnosis. However, although Detective Hammond told Respondent she had insomnia; he did not discuss this medical problem or ask her any questions about it. I n addition, the Informed Consent indicated that when she returned on November 20, 2006, she would receive a one year medical marijuana recommendation. He reminded her that she would need to bring $75.00 for the new recommendation. 28. Respondent gave Detective Hammond a second form entitled "Medical Marijuana of San Diego Physician Statement" (Physician Statement) and instructed her to sign it. She complied. Initially, Detective Hammond included the date on the top of the form. Respondent gave her another, blank copy of the same form to sign and instructed her to ll out the form again, put her date of birth on top, and the date at the bottom of the form; she complied. The Physician Statement explained that Respondent is a licensed California physician and assigned her the number 307-42. When she reviewed the form, Detective Hammond noted it indicated that Respondent had assessed her medical history and medical condition and that Detective Hammond had informed him that cannabis provided relief for her symptoms. In fact, Respondent did not ask Detective Hammond about her marijuana use or whether it helped with her insorrmia
13

condition. Detective Hammond did not inform Respondent that marijuana provided relief for her symptoms as the Physician Statement said. In addition, the Physician Statement said that Respondent had informed Detective Hammond that cannabis was restricted under Federal law, how the benets of cannabis outweigh the risks and that Respondent would continue to monitor 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 not operate motor vehicles or hazardous equipment; that Respondent had been 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 Detective Hammond. She signed the Physician Statement authorizing Respondent to discuss her medical condition as it pertained to the use of cannabis with law enforcement ofcials or verication/registration program ofcials who requested verication 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 and address on it. Respondent asked Detectives Hammond and Boyce to trade places and took a photograph of Detective Hammond. Respondent told her that he would mail her medical marijuana card. 30. R e sp o n d e n t asked Detective Boyce for his identication and completed a "Designation of Primary Caregiver" (Caregiver form). Respondent asked both detectives to sign the form. He stated that the caregiver's name would be on the medical marijuana card that would be mailed to Detective Hammond. 31. W h i l e the detectives were nishing their session with Respondent, two other men walked into Respondent's ofce. Respondent had a brief conversation with the men, told the detectives "goodbye and that he would see them again in six months." 32. Respondent testied that he made certain assumptions about Detective Hammond's condition based on his interview and observations of 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 testied that he did so because she told him that she had a prescription for "Lunesta," normally not provided unless a patient has had difculty sleeping for four weeks or longer, the denition 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 he had about this patient. 33. P a t i e n t Summers presented at Respondent's San Diego clinic and requested a recommendation for medical marijuana. The standard of care for a physician recommending marijuana to a patient is the same as pertains to recommending any medication or treatment 14

(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 marijuana recommendation, Respondent deviated from the standard of care in the following respects. The history obtained by Respondent was insufcient for him to make a diagnosis of insomnia. Among other things, he did not ask questions about her condition or discuss the length 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 of her condition. Respondent did not perform a physical examination. In order to comply with the standard 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 for insomnia, palpating the patient's thyroid gland and mental status examination. Respondent did not complete and maintain proper medical records for Patient Summers in that, among other things, he recorded information not conveyed to him by the patient, such as "chronic insomnia" when she reported "insomnia." Respondent's did not obtain and review medical records to conrm the medical condition that necessitated the need for medical marijuana. Respondent did not contact Patient Summers' primary care and/or treating physician to discuss/assess prior treatment for insomnia. Detective Hammond was a new patient who did not present medical records for review. Respondent made no effort to obtain any. He did not attempt to contact her primary care or treating physician(s). Without conrming the diagnosis or previous treatment for insomnia, Respondent made a recommendation for medical marijuana, a controlled substance as 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 of care required that Respondent reevaluate Patient Summers in less than six months to determine the efcacy 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 Lofus, ID# 3541, (Detective Lofftus), posing as patient Mark Anderson (Patient Anderson), called Respondent's ofce for an appointment to obtain a recommendation for medical marijuana. He scheduled the appointment for May 24, 2006 at 5:30 p.m.

15

35. O n May 24, 2006, Detective Lofftus entered Respondent's clinic, located at 311 4' device." h observed ) A v e and heard three men sitting at a desk inside the room talking. Detective Lofftus knocked W n uh e on the door. Respondent greeted him and asked i f he was there for an appointment to get a medical marijuana recommendation. When Detective Lofftus said "yes," e , n Respondent invited him inside the ofce and instructed him to take a seat on a folding chair h # 2 by the entrance door. e 0 8 a , r 36. W h i l e seated, Detective Lofus observed and heard Respondent talking to two r S i men who were patients. I n his report, Detective Lofftus described the appearance of and v a e conversations that Respondent had with these men. After Respondent completed his d n , discussion with these patients, Respondent called Detective L o a m to be seated in front of t D Respondent's desk. h i e 37. Respondent asked Detective Loans i f he completed his medical forms d g "online." Detective Lofftus stated that he had not, and Respondent said that was ne. o Respondent said "he would need $150.00 and a California Identication from him." He o , handed Respondent $150.00 in cash and an undercover California Identication for another r C detective in the name of "Mark Anderson." The California Identication contained the tphotograph and physical description of the other detective, specically a white male, 5'10", a o l210 ipounds, long blond, shoulder length hair, hazel eyes and a full mustache. Detective # fLoans is a white male, 5'8", 165 pounds, short blond hair, blue eyes and was unshaven for 2 o week prior to this undercover visit. When Detective Lofftus handed Respondent this one 0 r identication, his response was "Oh, wow, you've lost a lot of weight." Detective Lofus said 8 n "Boss, I have some issues." Respondent ignored this comment and asked what his date w iof birth was while looking back and forth between the California Identication photograph and a Detective Lofftus sitting in front of him. Detective Lofftus gave him the correct date of birth, and Respondent replied, "That's an incredible difference! Unbelievable! You look s a really good now!" Respondent began explaining the forms that Detective Lofftus would be p n required to complete and did not ask any more questions about the identication a d rdiscrepancies. t e 38. Respondent proceeded to give Detective Lofftus a brief history of medical i c marijuana and advised that it should be treated like a gun, transporting it in the trunk of a car a o when the detective traveled anywhere. Respondent recommended that the detective follow l r the "three step rule" and explained the three steps it should take to retrieve marijuana from lthe d trunk of the car after he exited his vehicle. He told Detective Lofns several times that it y e illegal to transport marijuana over state lines. was o d p t 39. Respondent explained that in order "to obtain medical marijuana" a patient e h must have a diagnosis, summarized the list of most common qualifying medical conditions n e , v a0 h e DVD of without appropriate software. This DVD Exhibit 24. Though the Findings be seen, this i1 T cannot be heard this undercover operation was admitted aswas reviewed in making video canof Fact inthe audio n s case. d i 16 D t e w

and then asked Detective Lofftus what his medical problem was. Detective Lofftus replied that he had pain in his spine and neck when he turned his head. Respondent asked how long he had the pain, and Detective replied he had it for a "long time, guessing 13 years." Respondent said the words "31 years." Detective Lofus reported that he did not know i f Respondent 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 Loftlus replied 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 of pain between 1 and 10, with 10 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 would be more appropriate. Then, Detective Lofus 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 Lofus had any medical problems, past addictions or surgeries. Detective Loftus responded "No, I don't really have any." 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 auto mechanic 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 if 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 his complaints. Respondent asked i f it was usually in the right side of the neck, and Detective Lofftus responded "Yes." 'Respondent testied that, at this time, he performed a brief physical examination 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 the right side of the patient's neck and asked i f the pain was usually on the right side of his neck, and Detective Lofftus responded "Yes." Respondent asked, "Is it the neck, upper back and shoulders?" Respondent testied 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 of spasms down into my shoulder;" he touched the right side of his neck, brought his fmger to his 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, are certain positions worse." Further. Respondent testied that he performed a range of motion 17

evaluation of the neck, ranges o f motion included exion, extension, rotation left, rotation right, side bend left and side bend right. In the patient's medical record, regarding his physical examination, Respondent reported, in pertinent part: "A A 0 X 3 (alert awake oriented), right neck, shoulder, upper back with trigger point muscle spasms, full range o f motion with pain." Respondent testied that Detective Lofftus' audio/visual recording of his undercover operation at his clinic supports his testimony. There is a knocking noise that grows gradually louder at the point that Respondent testied 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 testied that Respondent did not perform a physical examination and did not touch him; during the portion of the DVD that Respondent contends that he was performing the physical examination, in truth and in fact, Respondent was writing in his chart. On the tape, Detective L o f explained the noise on the tape as his girlfriend setting up her art supplies. us a s k e d i f Considering the testimony of Detective Lofftus, his report, the audio/visual recording t h e r e and Respondent's testimony, and the facts in the foregoing paragraphs, the conversation w a s occurred ass t r u described; however, Respondent's testimony that he performed the Respondent c t i c o n physical examination was not credible. The DVD supports Detective Lofus' statements, o n , and it is not reasonable to believe that Respondent performed the medical tests that he a n d claimed he did in the short amount of time that he admits he spent performing the physical R e s p o examination. n d e n t Therefore, based on the evidence in this record, it was established that Respondent did not perform a physical examination, and yet reported information that he could only have obtained had he performed such an examination. 41. I n his medical record for Patient Anderson, Respondent marked "Neuro 1 neurological evaluation based on his observation of the patient, not a physical examination. N He did not perform sufcient appropriate medical tests to mark as indicated. He testied that L he 1 should have written "grossly intact not come with obvious neurological decits." 1 42. Respondent told Detective Lofus he would give him a six-month i recommendation for medical marijuana; during this time period Detective Lofftus would n have to see a doctor to conrm his "qualifying diagnosis." Then Respondent scheduled d Detective Lofus' next appointment for November 24, 2006, stating that he would need to i bring medical records on the next visit, explain how marijuana had helped his diagnosis and c pay $75.00 for a one year renewal of the medical marijuana recommendation, a t i n IL WNL means within normal limits. g t 18 h

43. R e sp o n d e n t explained that the neck pain needed to be veried by a medical provider and described a list of different medical practitioners that Detective Lofftus could contact for an examination before returning for his next visit. Respondent said that he had a friend 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 ofce. Respondent provided Detective Lofftus with contact information for his acupuncturist friend stating that he 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 Lofus' diagnosis, he would not ask for it again. Detective Lofftus asked how much the visit with the acupuncturist might cost. Respondent replied "very cheap." Respondent retrieved a document from his fax machine and showed it to Detective Loffttis, stating it was from his acupuncturist friend concerning another patient. Respondent covered the patient's name and said he had been diagnosed with chronic headaches, as well as back and shoulder pain. 44. R e sp o n d e n t gave Detective Lofftus several documents to sign, including the Informed Consent, Physician Statement and Passport. The Informed Consent had several places for Detective Lofus to initial; Respondent did not explain the content of the form. Detective Loans 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 of acknowledgements that, by signing and/or initialing the form, Detective Lofus was indicating he had done certain things and/or was aware of legal issues concerning marijuana. The rst item was "I have tried multiple drug and medical regimens with unfavorable response." Respondent did not discuss this issue nor did he inquire about it. Similarly, Respondent did not discuss other listed acknowledgements. On the Physician Statement, Respondent instructed Detective Lofftus to write his name and date of birth at the top of the form and sign and date it at the bottom. Th e Physician Statement indicated that Respondent was a licensed California physician, and that Patient Anderson was a patient under his "medical care and supervision" for treatment of a condition identied as "# 7 2 9 -1 . Respondent had assessed Detective Lofftus' medical history and condition and determined 12 T h e that cannabis was providing relief for symptoms related to his diagnosis of "chronic muscle P h y s i c i a n spasms." Respondent had no medical records and did not contact the patient's primary care S t a t e m e n or treating physician. He obtained insufcient history to determine whether cannabis t provided a relief for s patient's presenting symptoms. this w a n Respondento w l gave Detective Lofftus a folded wallet-sized version of the Physician a c k n Statement which contained the word "Passport". Respondent instructed Detective Lofftus to e d g m e n t sign and date this document. He handed Detective Lofftus a blank envelope and directed t h him to write t name and address on it, stating that the envelope would be used to send a his a medical marijuana photo identication card to Detective Lofftus. Respondent took Detective
1 R e s p o n d e n t explained to Detective L o f t s that condition #729-1 was a diagnosis of "chronic muscle 2 spasms."

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Lofftus' photograph for this identication card. During this process, Respondent's ofce telephone rang several times, and Detective Lofftus overheard Respondent conrming that various people were patients of his and when they were last seen by him. Respondent explained to Detective Lofftus that he was able to remember the information because he had a photographic memory. The visit ended, and Respondent told Detective Lofftus that he would 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 physician recommending marijuana to a patient is the same as pertains to recommending any medication 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 medical marijuana 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 of neck pain. He did not perform a good faith physical examination that included vital signs, and , evaluation was required. D r. MacDonald did not dispute that a physician can determine a c great deal by observing a patient and that a signicant portion of the neurological and mental a rstatus examinations is done by observation. However, because the patient had complaints of neck pain, Respondent should have performed a more comprehensive neurological d iexamination that included touching the patient; otherwise he was not able to assess for the integrity of deep tendon reexes or of gross sensation in the affected areas, a necessary part o of the examination. v a He failed to maintain proper medical record keeping and made fraudulent medical s record entries in regards to Patient Anderson. Specically, Respondent documented in the c patient's medical records that some type of physical examination was done; it had not; he u documented that the patient's neurological status was within normal limits (Neuro WNL); he lperformed no neurological examination to make this determination; and he documented that a examined the patient in response to his complaint of right neck, shoulder and back pain he rand evaluated the patient's trigger points; he did not touch the patient. a n Respondent's did not obtain and review medical records to conrm Patient d Anderson's medical condition that necessitated the need for medical marijuana. p u Respondent did not contact Patient Anderson's primary care and/or treating physician lto discuss/assess prior treatment for his condition. m Detective Anderson was a new patient who did not provide medical records. o Respondent made no effort to obtain any. He did not attempt to contact the patient's primary n care or treating physician(s). Without conrming the diagnosis or previous treatment for a rpain, Respondent made a recommendation for medical marijuana, a controlled substance, as y 20 e x

treatment for chronic pain and scheduled his follow-up visit for six months thereafter. Though reasonable physicians may disagree regarding the appropriate time frame, the standard of care required that Respondent re-evaluate Patient Anderson in less than six months to determine the efcacy of the treatment for his medical condition. Expert testimony established that Respondent's treatment of Patient Anderson represented an extreme departure from the standard of care. Patient IVilliam Zien2an 46. O n January 16, 2007, Ofcer William Cindel (Ofcer Cindel), working undercover, entered 303 Broadway, Suite 204, Laguna Beach, California and requested a medical marijuana recommendation from Respondent. He used the ctitious patient name of William Zieman (Patient Zieman). There was no receptionist and no traditional lobby within the ofce. There were a number of other people waiting to see Respondent. After waiting two hours, Respondent came into the lobby area and gathered six people, including Ofcer Cindel, and took them into a conference room where he counseled the six as a group. He told the group that they were being counseled together to save time and to give him an opportunity to explain Proposition 215 and S.B. 420. He explained that if they preferred to meet with him individually, they could return to the waiting room. None elected to do so. Respondent passed paperwork to the members of the group to look over and to sign. The paperwork consisted of disclaimers, notes from Respondent and the Informed Consent. When the paperwork was completed, Respondent collected his appointment fee of one hundred and fty 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 group to 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 of others, Ofcer Cindel had his individual consultation with Respondent. He asked Ofcer Cindel what qualifying ailment he had. Ofcer Cindel responded "migraine headaches." Respondent asked Ofcer Cindel how long ago the migraine headaches began. Ofcer Cindel stated, "About two years ago I had a car accident." Respondent stated, "On 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 . n i n e t e n ? " Ofcer Cindel started to explain the pain brought him to his knees but was cut off by Respondent reiterating, "Nine t e n . " Ofcer Cindel answered, "About a nine." Respondent asked Ofcer Cindel, "How often do you have headaches... one t w o times a week?" Ofcer Cindel answered, "About once a week." Respondent told Ofcer Cindel the next question had to be answered with a "Yes." He then asked Ofcer Cindel, "Do you feel like the potential benets of medical marijuana use would outweigh the health risk?" Ofcer Cindel replied, "Yes." Respondent asked Ofcer Cindel to stand. H e walked over to where Ofcer Cindel was standing and said he was going to examine him. Ofcer Cindel testied that Respondent told him to remain still, and he placed each of his hands on his temples and lightly felt the temple area of his head along with the bridge of the nose and forehead. This took less than 20 seconds. When he
21

was done, Respondent congratulated Ofcer Cindel and told him that he was recommending the use of medical marijuana for his medical ailment. 48. Respondent testied that he documented that the patient was within normal limits for "Neck," "Lungs/Chest," "CV" and "Neuro", based on the physical examination that he performed. He testied that, with his stethoscope, he listened to the patient's lungs and heart, squeezed the patient's head to determine i f there was cranial tenderness, checked frontal and maxillary sinuses, touched his forehead between eyebrows right below the cheeks, palpated the sides of his head and palpated the temporal mandibular joint. According to Respondent, he performed his neurological examination by observing the patient; he saw no obvious signs of paralysis; he testied that Ofcer Cindel "looked pretty healthy" and that he probably should have written "grossly intact neuro." 49. T h e evidence regarding the physical examination of Ofcer Chide! included Respondent's medical record for Patient Zieman and the testimony of Ofcer 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 testied that she was a patient in Respondent's clinic in January 2007 but she could not recall the date of her visit. Her testimony is consistent with that of Ofcer Cindel regarding his physical examination but inconsistent in that she testied that Respondent listened to Ofcer Cindel's chest with his stethoscope while there is no reference to the foregoing in Ofcer Cindel's report or testimony. Considering the memories of each of these witnesses, Ofcer Cindel was more reliable. Respondent falsied his medical records when he checked off boxes on the physical examination 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 make these determinations. Expert testimony established that there was "no possible way" that Respondent was able to evaluate the pulmonary and cardiovascular systems based on the brief physical examination performed by Respondent. A physician can determine a great deal by observing a patient. A signicant portion of the neurological and mental status examinations are done by observation. However, in this case, there appears to be a falsication of the examination that was done (described in the foregoing paragraph); and an adequate neurological examination would include touching the patient in a manner not restricted solely in the manner described by Ofcer Cindel because otherwise Respondent could not assess for the integrity of deep tendon reexes, for example, and a neurological examination would be important 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 requested a recommendation for medical marijuana. The standard of practice for a physician recommending 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
2 2

Respondent's care and treatment of Patient Zieman when he made the medical marijuana recommendation, 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 more focused exploration of his prior treatment for migraine headaches. The physical examination was inadequate. He did not obtain vital signs, falsely documented that he performed a cardiovascular and pulmonary examinations and based his neurological and mental status examinations solely on observation and touching the patient's forehead. His 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 an adequate physical examination was done when it was not; he documented that the patient was 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 conrm Patient Zieman's medical condition that necessitated the need for medical marijuana. Respondent did not contact Patient Ziemares primary care and/or treating physician to discuss/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 or treating physician(s). Without conrming the diagnosis or previous treatment for migraine headaches, Respondent made a recommendation for medical marijuana and scheduled the follow-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 Patient Zieman in less than six months to determine the efcacy of this treatment modality for migraine headaches. Expert testimony established that Respondent's treatment of Patient Zieman represented an extreme departure from the standard of care. A substantial body o f the Informed Consent for Patient Zieman discusses routes of administration, daily dosages, etc. in some detail. 'What is not clear is whether Ofcer Cindel initialed those areas or whether they were noted as "n/a" by Respondent. Clarication 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 to adhere to standards regarding individualized advice on how to use medical marijuana represented a lack of knowledge.

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51. C o mp l a i n a n t alleged that Respondent departed from the standard of care in that he failed to provide adequate informed consent and failed to discuss the potential side effects of using marijuana to Patients Summers, Anderson and Zieman. Respondent departed from the standard of practice in that he did not explain the information 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 of care required that Respondent determine the risk/benet 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 side effects or risks and benets as a treatment modality with these patients. As such, he was unable to perform the required risk/benet analysis and therefore departed from the standard o f 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, insufcient evidence was offered to establish that Respondent displayed a lack of knowledge in his care and treatment of patients Summers, Anderson and Zieman. 53. Respondent committed acts of dishonesty or corruption in his care and treatment of Patients 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.. This document stated,. among other things, that Respondent had "performed a good faith examination," that the patient "meet the criteria for the medicinal use use [sic] o f 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 benets 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 he directed these patients to sign the documents in his presence and as a condition to receive a medical marijuana recommendation. 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 that cannabis is providing/may provide relief for related symptoms" of the qualifying diagnosis and "[mile have discussed the medical benets and risks of cannabis use as a treatment for this [the alleged qualifying diagnosis] condition, as well as other interventions." Respondent knew 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 of "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 an adequate physical examination was done when it had not and that the patient was within normal 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 brief examination of Patient Zieman. 54. R e sp o n d e n t knowingly made and/or signed documents related to the practice of medicine that falsely represented the existence or nonexistence of facts related to his care and treatment of Patients Summers, Anderson and Zieman in the following respects. He directed each patient-to sign the Informed Consent without adequate discussion regarding the contents of the document. Among other things, this document indicated that he had "performed a good faith examination," that the patient "meet [sic] the criteria for the medicinal use of [sic] o f cannabis," that "you have informed me that cannabis is providing relief/may provide relief for related symptoms" associated with the qualifying diagnosis and that "Dr. Jimenez and I have discussed the medical benets 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 order to!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 that cannabis is providing/may provide relief for related symptoms" of the qualifying diagnosis and "[w]e have discussed the medical benets and risks of cannabis use as a treatment for this [the qualifying diagnosis] condition, as well as other interventions." A t the time that Respondent signed the documents related to these patients receiving medical marijuana recommendations, 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 it had not; that the patient's neurological status 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 within normal 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 brief examination of Patient Leman.

25

55. Respondent failed to maintain adequate and accurate medical records for Patients 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 document indicated that Respondent had "performed a good faith examination," that the patient meet [sic] the criteria for the medicinal use [sic] o f cannabis," that "you have informed me that cannabis is providing relief/may provide relief for related symptoms" associated with the qualifying diagnosis and that "Dr. Jimenez and I have discussed the medical benets 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 these patients to sign the document as a condition to receiving a medical marijuana recommendation. He signed and directed each of these patients to sign the Physician Statement and Passport. These documents indicated, among other things, that "my patient has informed me that cannabis is providing/may provide relief for related symptoms" of the qualifying diagnosis and "[w]e have discussed the medical benets and risks of cannabis use as a treatment 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 some type of physical examination was done when it was not; that the patient's neurological status was 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 it was not and that the patient was within normal 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 it is for the "JimenezEwa Beach Foundation Clinic" are in large part, illegible. 56. Respondent represented in his medical marijuana recommendations, the prequalication disclaimer section on his medical marijuana websites, and in his "Medical Marijuana Guide," which he sells to the general public, that he is a "Cannabis Specialist" and/or a "Qualied Medical Marijuana Examiner." Complainant alleged that this statement conveys a level of expertise, specialization and/or possession of a formal qualication in an area that has no dened standard of specialization or formal designation of "Qualied Medical Marijuana Examiner". There is no formal process or education necessary to obtain either of the foregoing designations. Respondent testied that he used the designation of "Qualied Medical Marijuana Examiner" or "Cannabis Specialist"; further, in his opinion, the only qualication'to issue a medical marijuana recommendation in the State of California is a physician and surgeon's 26

certicate; as such, he was qualied to use either designation; he did not intend to deceive anyone or to entice a patient to select him over another physician. Despite Respondent's justication of the use of the designations o f Cannabis Specialist and/or Qualied Medical Examiner, considering the evidence and his testimony as a whole, his statements on Page 5 o f his "Marijuana Guide" accurately reect Respondent's position. He stated, in pertinent part: "It is important to understand that Respondent acts as a Consultant (A Cannabis Specialist/Qualied Medical Marijuana Examiner) only h e is not a Primary Care Provider N o te a Cannabis specialist or Qualied Medical Marijuana Examiner has become a specialty because of the medical-legal complexities surrounding the issuing of a Medical Marijuana Recommendation." Respondent does not state that any doctor is qualied to issue a medical marijuana recommendation but rather represents that there is a specialty that does not exist. As such, he is a self-declared cannabis specialist and qualied medical marijuana examiner. There is no formal process or education necessary to obtain either of the foregoing designations. Given the facts in the foregoing paragraphs, by self-designating himself as a "Qualied Medical Marijuana Examiner" and/or "Cannabis Specialist," Respondent made and disseminated false and misleading advertising because it conveys a level of expertise, specialization and/or formal qualication in an area that has no defmed standard of specialization or formal designation of "Qualied Medical Marijuana Examiner" and/or "Cannabis Specialist." 57. R e sp o n d e n t admitted that he made some mistakes, explained that it was not his intention to deceive his patients and wants to comply with the standard of care. 58. R e sp o n d e n t described the changes that he had made in his medical marijuana practice since the ling of the Accusation in 2007. He moved his ofce in Long Beach. He shares an ofce with two other doctors. H e has a receptionist and medical equipment normally seen in a medical ofce. He has revised his informed consent and side affect forms. Both documents are located on line, and the patient has an opportunity to review it before coming for an ofce visit. He testied that he spends as much time as necessary to review each form. He testied that he requests medical records when the patient requests a visit, and he does a more complete history and physical examination. Respondent offered no evidence in support of his testimony. 59. P u r s u a n t to Business and Professions Code section 125.3, Complainant seeks to recover the costs o f investigation and enforcement of the allegations set forth in the First Amended Accusation. In support of this request, Complainant submitted "Certication of Prosecution Costs: Declaration of Martin W. Hagan" executed by Deputy Attorney General Martin W. Hagan, seeking to recover total costs of $74,323.69. This includes: (1) legal fees of $64,857.00 and (2) investigative costs o f $9,466.39. Respondent made no objection 27

during the hearing or when the AdministrativeLaw Judge re-opened the record to allow the parties to address the issue. LEGAL CONCLUSIONS 1. C o m p 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 Quality Assurance (1982) 135 Cal.App.3d 853.) This requires that he present evidence "of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth" o f 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 or speculation, 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 dened as "unprofessional conduct." In the administrative discipline context, unprofessional conduct refers to acts or omissions which satisfy the denition of gross negligence, repeated negligent acts and/or incompetence. Respondent had a duty to perform professional medical services for patients with the degree of learning and skill ordinarily possessed by a reputable physician practicing in the same 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 o f his profession practicing in the same 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 fulll any such duty is negligence. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 279, 100 Cal.Rptr. 82, 84; Hufnan 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 is due 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) 187 Cal.App.2d 195, 9 Calaptr. 634.) A lack of ordinary care denes negligent conduct. Gross negligence is an error or omission that is egregious and agrant. "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 categorize degrees of negligence is difcult and oftentimes it is hard to distinguish an act that is very negligent from an act that is slightly grossly negligent. Nevertheless, a distinction has been recognized in the law between ordinary and gross negligence and this distinction forms the basis upon which administrative jeopardy attaches to a respondent's conduct. 28

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 isolated incident. I t is well recognized by law and common sense that to err is human. A simple isolated 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 a pattern of negligent conduct that is strongly suggestive of a high degree of risk of harm to the public from this professional. Incompetence generally refers to an absence of qualication, ability or tness to perform a specic professional function or duty. (Kearl v. Board of Medical Quality Assurance (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 under Business and Professions Code sections 2227 and 2234, as dened by section 2234, subdivision (b) of the Code, in that Respondent was grossly negligent in his care, treatment and management of Patients Summers, Anderson and Zieman, by reason of Findings 10 through 50. 4. C a u s e exists to discipline Respondent for unprofessional conduct under Business and Professions Code sections 2227 and 2234, as dened 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 of Findings 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 under Business and Professions Code sections 2227 and 2234, as dened by section 2234, subdivision (d) in that he displayed a lack of knowledge in his care and treatment of Patient Zieman, by reason of Findings 46, 47, 48, 49, 50 and 52. 6. C a u s e exists to discipline Respondent for unprofessional conduct under Business andProfessions Code sections 2227 and 2234, as dened 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 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 dened by section 2261 o f the Code, 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 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 54. 29

8. C a u s e exists to discipline Respondent for unprofessional conduct under Business and Professions Code sections 2227 and 2234, as dened in section 2266 o f the Code, 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 and 30, 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 Code sections 2227 and 2234, as dened 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 in violation of section 17500 of the Code, by reason of Findings 5 and 56. 10. I n determining the appropriate discipline, consideration has been given to the legislative intent that the purpose of 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 and Professions Code section 2229 states, in pertinent part: "(a) Pro te cti o n of the public shall be the highest priority for the Division of Medical Quality a n d administrative law judges of the Medical Quality Hearing Panel 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, take action 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 deciencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice or other means, that will remove those deciencies. Where rehabilitation and protection are inconsistent, protection shall be paramount." 11. C o n si d e ri n g the facts, the minimal evidence of rehabilitation, the law and the violations committed by Respondent, an order of discipline must be issued that rehabilitates Respondent as long as his deciencies in competency are sufciently corrected to protect the public interest. Complainant seeks revocation of Respondent's license, apparently based on the view that nothing short of revocation is sufcient to protect the public. Respondent has been licensed by the Osteopathic Medical Board more than 15 years with no prior discipline. Complainant established that he engaged in numerous acts o f unprofessional conduct that included, among other things, violations of the standard o f care, failure to maintain adequate and accurate records, dishonesty or corruption and false and misleading representations in making medical marijuana recommendations.

30

He admitted that he made some mistakes, explained that it was not his intention to deceive his patients and wants to comply with the standard of care. In addition, he described the 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 and misleading information to the public. His conduct demonstrated an attitude of deance and a lack of appreciation of and respect for the role of Osteopathic Medical Board in protecting the public and his obligation as a California licensed physician and surgeon to be a "gatekeeper" when making medical marijuana recommendations. H e did not appear to be contrite 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 required to protect the public. 12. C o mp l a i n a n t seeks to recover the Osteopathic Medical Board's costs of investigation and enforcement in this case. Respondent established that Respondent committed violations of the Medical Practice Act alleged in the First Amended Accusation and Legal Conclusions. Considering the foregoing, Complainant is entitled to recover the reasonable 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 the evidence, without merit and therefore rejected. ORDER 1. P h y s i c i a n ' s and Surgeon's Certicate Number 20A6499 issued to Respondent Alfonso 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 to payment by an installment plan because of nancial hardship, within 90 days of the effective date of this Decision, Respondent shall reimburse the Osteopathic Medical Board of California $74,323.39 for its costs o f investigation and prosecution. DATED:

/ 3 /

1414 1 1. 1. 1 1reA l avo iA 0 . 1.

---)WtWaVarip

VALLERA J. JOHNSON Administrative Law Judge Ofce of Administrative Hearings 31

DECLARATION OF SERVICE BY MAIL 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 the within cause; my business address is 1300 National Drive, Suite 150, Sacramento, CA 95834. 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: NAME AND ADDRESS Alfonso Jimenez, D.O. 420 K Street, #13. San Diego, CA 92101 Bruce M. Margolin, Esq. Law Ofces of Bruce M. Margolin 8749 Holloway Drive West Hollywood, CA 90069 CERT NO. 7007 0220 0001 4840 3156 (sent by certied and regular mail) 7007 0220 0001 4840 3163

7007 0220 0001 4840 3170 Steven Schectman, Esq. Pacic Law 321 1 Los /2 Angeles, CA 90012 E Each said envelope was then, on March 11, 2009 sealed and deposited in the F i United States mail at Sacramento, California, the county in which I am employed, with r s the postage thereon fully prepaid, and return receipt requested. t S Executed on March 11, 2009 at Sacramento, California. t r e I declare under penalty of perjury under the laws of the State of California that e tforegoing is true and correct. the , S u Angie M. Burton tt, 1 7 ) 6 1 4 i Ii S i g n a t u r e t Typed Name e 2 cc: 0 T h e Honorable Vallera J. Johnson, Administrative Law Judge Martin Hagen, Deputy Attorney General 0

EDWARD G. BROWN JR. Attorney General of the State of California THOMAS LAZAR, Supervising Deputy Attorney General MARTIN W. HAGAN, State Bar No. 155553 Deputy Attorney General California Department of Justice 110 West "A" Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3039 Facsimile: (619) 645-2061 Attorneys for Complainant

I LE D J 25 2008 UL
OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA

BEFORE THE OSTEOPATHIC MEDICAL BOARD OF CALIFO RNIA DEPART MENT OF CO NSUMER AFFAIRS STATE OF CALIFO RNIA

In the Matter of the First Amended Accusation Against:

ALFONSO JIMENEZ , D.O.

Case No. 00-2006-001760 OAH No. 2007100333

FIRST AMENDED ACCUSATIO N

420 K. Street, # 13 San Diego, CA 92101 Osteopathic Physician's and Surgeon's Certicate No. 20A6499 Respondent. Complainant alleges:
- PART IES

1. D o n a l d J. Krpan, D.O., Executive Director of the Osteopathic Medical Board of California, (Complainant), brings this Accusation solely in his ofcial capacity. 2. O n or about September 27, 1993, Alfonso Jimenez, D.O., (Respondent), was issued Osteopathic Physician's and Surgeon's Certicate Number 20A6499 by the Osteopathic Medical Board of California. This Physician's and Surgeon's Certicate was in full force and effect at all times relevant to the charges brought herein and will expire on May31, 2009, unless renewed. //// 1

JURISDICTION 3. T h i s Accusation i s brought before the Osteopathic Medical Board o f California ("Board"), under the authority of the following sections of the Business and Professions Code ("Code") 1 4. S e c t i o n 3600 states that the law governing licentiates o f 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 identied in Article 12 (commencing with Section 2220), of C h . hereafter amended, as to persons who hold certicates subject to the jurisdiction of a p te r Osteopathic Medical Board of California, however, persons who elect to practice the 5 using the term or sufx M.D. as provided in section 2.275 o f the Business and o f Professions Code, as now existing or hereafter amended shall not be subject to this D i v i section, and the Medical Board o f California shall enforce the provisions o f the s i article o n as to such persons who made the election. After making the election, each 2 person so electing shall apply for renewal o f his or her certicate to the Medical o f Board o f California, and the Medical Board o f California shall issue renewal t certicates in the same manner as other certicates are issued by it." h e 5. S e c t i o n 2227 of the Code provides that a licensee who is found guilty under B the Medical Practice Act may have his or her license revoked, suspended for a period not to exceed u s one year, placed on probation and required to pay the costs of probation monitoring, or such other i n action taken in relation to discipline as the Division deems proper. e //// s s //// a //// n d P r 1. Unless otherwise noted, all references are to the California Business and Professions Code. o f

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) V i o l a ti n g or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision o f this chapter [Chapter 5, the Medical Practice Act]. "(b) G r o s s negligence. "(c) Repeated 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 initial negligent diagnosis followed b y an act o r omission medically appropriate for that negligent diagnosis o f 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 of the standard of care. "(d) Incompetence. "(e) T h e commission of any act involving dishonesty or corruption which is substantially related to the qualications, functions, or duties of a physician and surgeon. "(f) A n y action or conduct which would have warranted the denial of a certicate.

7. S e c t i o n 2261 provides, in pertinent part, that knowingly making or signing any certicate 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 o f 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 o f 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 fo r any person, rm, corporation or association, or any employee thereof with intent directly or indirectly to dispose o f 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, rm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of aplan 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 of this section is a misdemeanor punishable by imprisonment in the county jail not 4

exceeding six months, or by a ne not exceeding two thousand ve hundred dollars ($2,500), or by both that imprisonment and ne." 11. S e c t i o n 125.3 of the Code provides, in pertinent part, that in any order issued in resolution o f 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 certied 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 facie evidence 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, asdened by Section 2234, subdivision (b) of the Code, in that Respondent was grossly negligent in his care, treatment and management o f the following patients, as more particularly alleged hereinafter:
INTRO DUCTIO N

a. R e s p o n d e 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, in pertinent part, "Medical Marijuana of San Diego has temporarily moved to the San Diego/Orange County Border for the following reason: There are no Dispensaries or Co-ops to obtain Medical Marijuana in the San Diego county. Currently, The Board of Supervisors of San Diego County hasn't implemented the Marijuana Laws, so as a result there isn't a Dispensary or Co-op in San Diego, requiring all Medical Marijuana patients to travel to Orange or LA county to obtain Medical Marijuana legally N e w San Diego Medical Marijuana patients will receive a 1 year recommendation (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 the doctor know i f you are from San Diego. The Orange County ofce is on the north side of the San Diego 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 th o d s o f administering marijuana, tips on growing marijuana indoors, different recipes for marijuana edibles, and how to beat the urine test for the presence o f 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 classies himself as a Qualied 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 of the year. b. T h e whole operation, which includes Dr. Jimenez, as a self-described "Qualied 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.medicalmarijuanaoosangeles.com: www.m edi calm arij uan aofsantab arbara.c om:and www.medi cal marjuanaothawaii.com. In addition to 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 prequalication and the face-to-face visit with Respondent and another link for the "history o f hemp"); and www.1888215herb.com which links to the prequalication site and advertises web based medical marijuana verications [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 certicate. The operation i s, i n fact, a sham and mi l l i n which medical marijuana recommendations and care giver certicates are provided to a large number o f patients w h o fa i l t o meet th e criteria f o r legitimate medical marijuana recommendations or care giver certicates.
PAT IENT KIMBERLY SUMMERS

13. Respondent is subject to disciplinary action under sections 2227 and 2234, as dened 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 Ofce 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 b y local physicians. Upon preliminary investigation, it was determined that the vast majority of 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 ndings, the San Diego Police Department, in conjunction with the San Diego District Attorney's Ofce, initiated an undercover investigation o f several San Diego physicians. These physicians were among those previously identied as issuing a signicant number of "marijuana recommendations" to young patients who appeared to not have serious medical conditions. Respondent was one of the physicians so identied.

1 9 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 29 93 94 95 26 97 98

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 C. n O n or about May 16, 2006, San Diego Police detective K. Hammond D iK. Bonilla),o 4931, posing as patient "Kimberly Summers," called one of (now e g 1D# , Respondent's medical ofces to schedule an appointment to see Respondent. A C A . ' receptionist told her there were no appointments available in Respondent's San Diego ofce 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 ofce 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 identication 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 ofces at 311 4 th Avenue, #208, also identied 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 ofce #208 the initials "MMSD" and she pushed the doorbell for this ofce. A male voice answered, later identied as Respondent, who instructed them to proceed to ofce #208. E. U p o n reaching ofce #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 identied as Respondent, asked the detectives i f they were there to obtain medical marijuana recommendations. Bo th answered afrmatively. Respondent then said "I need

4. Respondent has since closed up shop at this location, apparently because local law enforcement ofcials have targeted the dispensaries and cooperatives in San Diego County. 8

$150.00 and your identication from each o f you:" Detective Boyce then told Respondent that he wanted to be detective Hammond's care giver. Respondent then 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
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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 ll 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 certicate would only cost $25.00. Respondent then gave Detective Hammond change for the $200.00 and a receipt. F. D e t e 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 if 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 asummary of medical marijuana in California. G. R e sp o n d e n t 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 her doctor Was and she stated she believed it 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 9

23 24 25 26 77 28

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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 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. R e sp o n d e n t 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. T h e detective asked Respondent if she should read the form rst 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 observed that some things she had initialed had not been explained to her by Respondent. Specically, 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 21 29 93 94 25 96 77 28 transport marijuana across state lines, on airplanes or on cruise ships, but it was okay to transport it in the trunk of a car. When Respondent started to explain how to transport 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. N o r 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 specied 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 birth on 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

1 9 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
71

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 Respondenthad informed her that cannabis was restricted under federal law, how the benets 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 use o f cannabis w i th l a w enforcement ofcials o r verication/registration program ofcials who request such information. L. R e sp o n d e n t then gave the detective a little card marked "Passport," and asked her to write her name and date of birth on it 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 identication 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

22 23

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marijuana card that would be mailed to detective Hammond. N. W h i l e the detectives were nishing their session with Respondent, two other people walked into Respondent's ofce, 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 identication." T h e other, a black male, told Respondent this was his return visit, Respondent told him "1 will need your doctor recommendation and $75.00." Thi s 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 ofce visit lasted approximately 15 minutes. As they exited Respondent's ofce, 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. Pa ra g ra p h s 12 through 14, above, are incorporated by reference as i f fully set forth herein; B. R e s p o n d e n t failed to perform a history and appropriate examination of the patient; C. R e s p o n d e n t failed to maintain proper medical record keeping and made fraudulent medical record entries; D. R e sp o n d e n t 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. R e s p o n d e n t 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. R e s p o n d e n t failed to contact or attempt to contact any of the patient's prior treating physicians before recommending medical marijuana to her. / 13

PAT IENT MARK ANDERSON 9 3 4 5 6 7 8 9 10 1 12. 13 14 15 16 17 18 19 15. R e s p o n d e n t is further subject to disciplinary action under sections 2227 and 2234, as dened 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 ofce for an appointment to see Respondent in order to obtain a recommendation for marijuana. An unidentied 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 visit. tT he detective was instructed to also bring a California identication card and , a 5 : 3 0 copies o f his medical records. T h e detective responded that he did not have any p . m . a n d medical records because he had not seen a doctor in a long time. T h e female t h responded that he would s till be able to get a marijuana recommendation and he e c o would t told by Respondent to bring in the medical records next time he came in to be s w o the ofce. T he female asked only for the detectives rst name and then ended the u l d call. b e B. O n or about May 24, 2006, detective Mel Loftus, posing as patient $ 1 "Mark 0 Anderson," entered Respondent's medical practice at 311 4 5 111 . San e n u , A v Diego,eCA. This 2 0 was recorded by a video/audio device. On his arrival, the # visit 8 , 0 0 d door to suite 208 was partially opened and the detective was able to observe three u e men sitting at a desk inside talking. T h e detective knocked on the door and was a greeted by Respondent who asked him i f he was there for an appointment to get a t t medical marijuana recommendation. T he detective said yes and Respondent then h e invited him inside the ofce and to take a seat on a folding chair by the entrance t door. i m e o 14 f

91 22 23 94

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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 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 in his late twenties, about 62", weighing about 230 pounds, dressed in surf shorts and atee shirt. The other man was a white male, also in his late twenties, about 6 tall and 210 pounds, dressed i n 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 le complaints against law enforcement, and Respondent's plan to launch an advertising campaign for a new ofce 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 o f 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 in no obvious medical distress. E. A f t e r the black male patient left, Respondent turned his attention to the white male patient. Respondent rst collected $150.00 in cash from him as a new patient. This 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 briey reviewed them. Respondent 93 '74 75 26 77 78 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 ofce, 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 if he had completed his medical forms
15

"online." The detective said he had not and Respondent said it was ne. Respondent next said he would need $150.00 and a California I.D. from the detective. Respondent was handed $150.00 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, specically 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." Th e 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. R e sp o n d e n t 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 state lines. 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 11 31 y e a r s ? " a n d the detective just agreed with him by saying "at least." Respondent asked how he 16

had been hurt and the detective replied that he had played a lot of ball as a kid in school. Respondent then explained how it could be necessary to convince a court

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 74 95 26 27

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. T h e detective started to repeat the neck problem when Respondent asked him if he had ever seen a doctor for the problem. The detective explained that he could not afford to see a doctor. Respondent then asked if the detective smoked, drank alcohol, or used heroin or methamphetamine. T he 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 if 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, T he detective said "5." Respondent gave the detective a strange look suggesting that a different answer would be More appropriate. T h e 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 kind 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 conrm his "qualifying 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 of the medical marijuana recommendation. K. R e sp o n d e n t 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 the detective w i th contact information f o r his acupuncturist "friend," stating that he only needed to see her once and if 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 it again. Th e detective asked how much this visit with the acupuncturist might cost. Respondent replied "very cheap." L. R e s p o n d e n t next retrieved a document from his fax machine and showed it to the detective, stating it was from his acupuncturist friend concerning another patient. Respondent covered the patient's name and said he had been diagnosed 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 i s 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 preprinted 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 rst item was "I have tried multiple drug and medical regimens w i th unfavorable response." T h i s issue was not discussed w i th Respondent, nor did he inquire about it. Similarly, other listed acknowledgments on this form were not discussed by Respondent as well.
18

M. R e sp o n d e n t then provided the detective with another form entitled "Medical Marijuana of San Diego Physician Statement," upon which the detective

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 94 25 26 27 // / ///

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 identied as "#729-1 . 115 T h i s P h y s i c i a n Statement also was an acknowledgment that Respondenthad 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 e sp o n d e n t next gave the detective a folded wallet-sized version of 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 ID card was then taken. During this process, Respondent's ofce telephone rang several times and the detective overheard Respondent conrming that various people were indeed patients of 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 o f "chronic muscle spasms." 19

16. Respondent committed gross negligence in his care and treatment of patient "Mark Anderson" which included, but was not limited to, the following:

3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22. . 23
74
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A. Pa ra g ra p h s 12 and 15, above, are incorporated by reference as if fully set forth herein. B. R e sp o n d e n t failed to perform a history and good faith examination of
the patient "Marc Anderson;"

C. R e sp o n d e n t 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. R e sp o n d e n t failed to maintain proper medical record keeping and made fraudulent medical record entries in regards to patient "Marc Anderson." Specically, 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 e sp o n d e n 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. R e s p o n d e n 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 e sp o n d e n t 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.

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PAT IENT WILLIAAI Z IEMAN 17. R e s p o n d e n t is further subject to disciplinary action under sections 2227 and 2234, as dened 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, Ofcer C.W., working undercover,

entered 303 Broadway Suite 204 in the City of Laguna Beach seeking a medical marijuana recommendation from respondent. Ofcer C.W. used the ctitious patient name of "William Zieman." There was no receptionist nor traditional lobby within the ofce. T her e were also a number of other people waiting to see respondent. After waiting approximately two hours, respondent came into the make-shift lobby area and gathered six people including Ofcer 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. Res pondent then passed out paperwork to all the members o f the group to sign. T h e 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 fty dollars ($150.00) per person. Respondent also informed the group of the "most common" qualifying medical diagnoses for medical marijuana. I t appeared to Ofcer 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, O f c er C . W. had his indiv idual consultation with respondent. Respondent asked Ofcer C.W. what qualifying medical ailment he had. Ofcer C.W. responded migraine headaches. Respondent asked how long ago did the migraine headaches start. O f c er 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." Ofcer C.W. answered "about a nine." Respondent then asked Ofcer CM., "[Now often do you have the headaches... one... two times a week?" Ofcer CM. answered. "about once a week." Respondent then told Ofcer C.W. the next question had to be answered with a "Yes." Respondent then asked Ofcer C.W., "[d]o you feel like the potential benets o f medical marijuana use would outweigh the health risk?" Ofcer C.W. replied "Yes." Respondent then asked Ofcer C.W. to stand up. Respondent came over to where Ofcer C.W. was standing and said he was going to examine him. Respondent told Ofcer C.W. to remain still and he placed each ofhis hands on his temples and lightly felt the temple -area of my head along with the bridge of the nose and forehead. This took less than twenty seconds and when he was through, Respondent congratulated Ofcer 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. Pa ra g ra p h s 12 and 17, above, are incorporated by reference as if fully set forth herein. B. R e sp o n d e n t failed to perform a history and appropriate examination of patient "William Zieman;" C. R e sp o n d e n t failed to maintain proper medical record keeping and made fraudulent medical record entries for patient "William Zieman." Specically, 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. Additionally, 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 "William Zieman" by telling him he needed to answer "yes," to the question "tdjo you feel like the potential benets 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 specic dosage amount, recommending dosage timing, recommending the route of administration a n d referring t h e patient t o s uc h "impor tant" websites a s 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 e s p o n d e n t is further subject to disciplinary action under sections 2227 and 2234, as dened 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: ////
23

A. P a r a g r a p h s 12 through 18, above, are hereby incorporated by reference as if fully set forth herein.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

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. T HIRD CAUSE FOR DISCIPLINE (Incompetence) 90. R e s p o n d e n t is further subject to disciplinary action under sections 2227 and 2234, as dened 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 "Kimberly Summers," "Mar k Anderson" and "William Zieman," as more particularly alleged hereinafter: A. P a r a g r a p h s 12 through 19, above, are incorporated by reference as if fully set forth herein. FOURTH CAUSE FOR DISCIPLINE (Dishonesty or Corruption) Respondent is further subject to disciplinary action under sections 2227 and 2234, as dened 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 "Kimberly Summers," "Mark

21 22 93 24 25 26 27

Anderson" and "William Zieman," as more particularly alleged hereinafter: A. P a r a g r a p h s 12 through 20, above, are hereby incorporated by reference as if 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 24

Treatment Plan and Objectives" without adequate discussion regarding the contents of the document. This document indicated, among other things, that Respondent had

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

"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 Ihave discussed the medical benets 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 "Kimberly 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 p o n d e n 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 benets and risks of cannabis use as a treatment for this [the alleged qualifying diagnosis] condition, as well as other interventions." Thes e statements were known by Respondent to be false at the time he signed the documents related to patients "Kimberly Summers," "Marc Ander s on" a n d " W i l l i a m Z ieman" r ec eiv ing medic al mar ijuana

72 23 24 95 26 27 28

recommendations. C. R e s p o n d e n t committed acts of dishonesty or corruption in regards to patient "Marc Anderson." Specically, 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. R e sp o n d e n t committed an act or acts of dishonesty or c o n regards u p t i o n "William Zieman." Specically, Respondent documented in the to patient i n 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. Respondent is further subject to disciplinary action u n d e r . 2234, as dened e csection 2261 o2 the Code, in that he knowingly made and/or signed documents s by t i o n s 2 f 2 7 a n d related to the practice of medicine that falsely represented the existence or nonexistence of facts related to his care and treatment of patients "Kimberly Summers," "Mark Anderson" and "William Zieman" as more particularly alleged hereinafter: A. Pa ra g ra p h s 12 through 21, above, are hereby incorporated by reference as i f fully set forth herein. B. R e sp o n d e n t knowingly made and/or signed documents related to the practice of medicine that falsely represented the existence or nonexistence of 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. T h 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 benets 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. R e sp o n d e n t 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 benets and risks o f 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" a n d "Wi l l i a m Zieman" receiving medical marijuana recommendations. D. R e sp o n d e n t knowingly made and/or signed documents related to the practice of medicine that falsely represented the existence or nonexistence of facts in regards to patient "Marc -Anderson." Specically, 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 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. R e sp o n d e n t knowingly made and/or signed documents related to the practice of medicine that falsely represented the existence or nonexistence of facts in regards to patient "William Zieman." Specically, Respondent documented in the
27

patient's medical record that an adequate physi cal 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.
SIXTH CAUSE FOR DISCIPL INE (Failure to Maintain Adequate and Accurate Records)

23. Respondent is further subject to disciplinary action under sections 22.27 and 2234, as dened 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" asmore particularly alleged hereinafter: A. Pa ra g ra p h s 12 through 22, 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 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. T h 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 benets 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 e sp o n d e n t 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

of San Diego Physician Statement" and smaller passport version o f the same document. These documents indicated, among other things, that "my patient has

3 4 5 6 7 8 9 10 1 1

informed me that cannabis is providing/may provide relief for related symptoms" of the alleged qualifying diagnosis and "[w ]e have discussed the medical benets and risks o f cannabis use as a treatment for this [the alleged qualifying diagnosis] condition, as well as other interventions." Th e se statements were known by Respondent to be false at the time he signed the documents related to patients "Kimberly Summers," "Marc Anderson" and "William Zieman" receiving medical marijuana recommendations. D. R e sp o n d e n t failed to maintain adequate and accurate medical records in regards to patient "Marc Anderson." Specically, Respondent documented in the patient's medical record that some type of physical examination was done when it

13 14 15 16 17 18 19 20 21

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 e sp o n d e n t failed to maintain adequate and accurate medical records in regards to patient "William Zieman." Specically, 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

73 24

could not have been done by Respondent during the extremely brief "examination" 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,

96 27 78

in large part, illegible;

29

CAUSE FOR DISCIPL INE

(False and/or Misleading Advertising) 3 7 4 . R e s p o n d e n t is further subject to disciplinary action under sections 2227 and

4 2 2 3 4 , as dened by section 2271 o f the Code, in that he has made and disseminated, or caused to be 5 m a d e and disseminated, false and/or misleading advertising in violation of section 17500, as more 6 par tic ular ly alleged herein: 7 8 9 a B A s . P a r a g r a p h s 12 through 23, above, are hereby incorporated by reference

if fully set forth herein. . R e s p o n d e n t has represented in or on, among other things, his medical

10 m a r i j u a n a recommendations, the pre-qualication disclaimer section on his medical 11 m a r i j u a n a websites, and in his "Medical Marijuana Guide," which he sells to the 19 g e n e r a l public, that he is a "Cannabis Specialist" and/or a "Qualied Medic al 13 M a r i j u a n a Examiner." This statement is false and/or misleading in that it conveys 14 a level of expertise, specialization, and/or possession of a formal qualication in an that has no dened standard o f specialization o r a formal designation o f

15 a r e a

16 " Q u a l i e d Medic al Marijuana Examiner." 17 / / / / 18 / / / / 19 / / / / 20 / / / / ////

23 / / / / 24 / / / / 75 / / / / 7 6 97 / / / / / / 28 / / / / / /

30

PRAYER
7

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 Certicate Number 20A6499, issued to ALFONSO JIMENEZ, D.O., 2. O r d e r i n g Respondent t o pay the Board t h e reasonable costs o f the investigation and enforcement of this case, and, i f placed on probation, the costs o f probation

3 4 5 6

8 9 0 1 12 13 14 15 16 17 18 19 20 21 27 23

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 u t iv e Director . J / Osteopathic MedicatBoard of California State of California Complainant

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