DENVER – State attorneys on Thursday agreed that a Durango doctor and three other physicians did not violate any law or rule, despite having their licenses suspended for allegedly abusing the medical marijuana system.
Attorneys for the doctors are asking a Denver District Court judge to lift the license suspensions while the decision is challenged, in what could become a precedent-setting case that may make its way to the Colorado Supreme Court.
Judge Ross Buchanan initially dismissed the case. But he was compelled Thursday by a request from the doctors’ attorneys to reconsider. A ruling is expected Friday.
In asking for the medical licenses to be reinstated, the doctors’ attorneys suggested that the state crafted rules around medical marijuana physician recommendations in secret, thereby violating state law. They argue that the doctors were not made aware of any restrictions.
Deborah Parr, the Durango doctor, along with Gentry Dunlop of Aurora, Robert Maiocco of Denver and William Stone of Colorado Springs, are accused of authorizing the possession of at least 75 plants for hundreds of individuals “without medical necessity,” according to the Colorado Department of Regulatory Agencies.
The Colorado Medical Board stated that recommendations for plant counts in excess of 75 is “below generally accepted standards of medical practice and lacks medical necessity,” unless the diagnosis being treated is cancerous in nature.
The standard plant count for a medical marijuana patient is six.
Nothing in the state constitution prohibits doctors from prescribing larger plant counts, and research on the subject is incomplete.
Perhaps more significant is that the state agrees that no rule prohibits doctors from authorizing large plant counts.
The acknowledgment could prove a blow to the Colorado Medical Board’s efforts to limit recommendations of large numbers of plants.
“We couldn’t pass a rule. We didn’t pass a rule. We have no right to pass a rule,” Scott Bowman, an attorney with the attorney general’s office, told the judge, adding that the state is not seeking any disciplinary action against the doctors.
Judge Buchanan appeared skeptical that an unknown rule is not at issue, telling state attorneys, “You can call it whatever the heck you want, but if it walks like a duck, quacks like a duck and swims like a duck, it’s a duck.”
Attorneys for the doctors backed the state into a corner. If the state promulgated a rule, then it was done in secret, which would violate state law. At the same time, if there was no rule to base the suspension on, then attorneys can argue that the doctors had their licenses suspended arbitrarily.
“There has to be a purpose to limit the license, and if you limit it in a way that is too broad, it is invalid,” said Kari Hershey, an attorney for two of the doctors, including Parr. “The board exceeds its authority when it issues blanket suspensions.”
Hershey said the decision could lead to unwarranted arbitrary suspensions, adding, “They could suspend for literally any reason. They could suspend because a physician has office hours that they don’t like.”
Bowman declined to comment on how the licenses were suspended if no rule was violated. A spokeswoman for the attorney general’s office also declined to comment. A spokeswoman for the Department of Regulatory Agencies, which oversees the medical board, was looking into the issue on Thursday.
It’s likely that the state will argue that the medical board has broad authority to determine whether actions by doctors meet a standard of care.
In the meantime, Judge Buchanan is weighing whether he has the jurisdiction to issue a ruling. His initial decision was to tell the doctors to appeal to the medical board, stating, “have some faith in the system,” which drew chuckles from observers.
Attorneys for the doctors pointed out that if that appeal is unfavorable to the physicians, then they might not have standing to argue all their points before an administrative law judge, including the issue of crafting a rule in secret.
The scope of that argument might go beyond an administrative law judge, and then there would be no record for an appeal, as the appellate court rarely allows new evidence.
Attorneys for the doctors plan to petition the Colorado Supreme Court to hear the case directly if Judge Buchanan does not lift the license suspensions. The doctors intend to seek a permanent injunction if the motion for reconsideration is granted.
“I struggled very hard with this case,” Buchanan said.
He added, “It’s at least possible that the medical board ... recognized the error of its ways ... But it needs to be given that opportunity.”