Autumn 2005 Hanya Barth, MD, is being prosecuted by the Attorney General of California, on behalf of the state medical board, for approving marijuana use by the late James Hoffman (a pseudonym). Deputy AGs Larry Mercer and Jane Zack Simon, the same duo that prosecuted Tod Mikuriya, MD, are handling the case.
Barth is represented by Patrick Hallinan, a respected San Francisco criminal defense lawyer with limited experience trying cases against the medical board. (Patrick is Terence Hallinan’s older, less overtly political brother.)
The Medical Board of California (MBC) is the state agency that issues doctors’ licenses and can revoke them or take other disciplinary action. The board has 21 members, 12 of them doctors appointed by the governor. The MBC’s Enforcement Division employs about 100 investigators working out of 12 district offices. MBC investigations typically involve the hiring of an expert witness —a reputable doctor in the same specialty as the complained-about doctor— to review the relevant charts and decide whether “standards of practice” had been violated.
About 25% of the complaints result in investigations, 30% of the investigations are referred to the Attorney General’s office for possible disciplinary action. In 90% percent of the referred cases a Deputy AG drafts a formal Accusation stating the charges against the doctor and proposing certain penalties (probation, fines, remedial classes, etc.)
If the doctor won’t accept the penalties, or can’t negotiate a settlement, a hearing is held by an Administrative Law Judge (ALJ). Expert witnesses testify, evidence is introduced, and the ALJ issues a “proposed decision” to the Board’s Division of Medical Quality, which can adopt, modify, or reject it in determining how to discipline the doctor.
The complaint against Dr. Barth was received at the MBC’s Central Complaint Unit in Sacramento on April 1, 2005 -a letter from Rebecca A. Powers, M.D. a Los Gatos psychiatrist. She wrote in a readable script: “I am the new treating psychiatrist for a 19 year old male. He has a history of depression, ADHD and Anxiety. He was recently hospitalized [with a diagnosis of] grave disability for psychosis.”
“This young man was a high functioning adolescent in sports and received a GPA of 3.13. His symptoms of depression started when he started using marijuana (THC) about May 2004. He received a medical marijuana card for insomnia and depression about that time from Dr. Hanya Barth, Family Practice, San Francisco. Because of the timing and daily use of marijuana, I believe the THC caused his depression to worsen, interferes with antidepressant meds, and clearly caused his psychosis.
“He is also no longer functioning. He couldn’t do college (dropped out 2x), he’s not working, he lives off his parents in a trailer behind their home, he’s still psychotic, he is cognitively dull, has impaired motor coordination, impaired judgment, social withdrawal, mental slowing, and anhedonia. He is also psychologically and physically dependent on the substance. He refuses to quit. He even admitted to seeking the medical marijuana justification in order to use regularly ‘legally.'”
Respect and sympathy are the basic qualities you’d want in a psychiatrist; Powers’s letter exudes contempt. “Lives off his parents.” At 19 —what a moocher! “Refuses to quit” instead of “He insists that it helps him.” Powers’s assumption that marijuana causes physical dependence is without scientific foundation. Her use of the term “even admitted” exposes a prosecutorial frame of mind. She seems appalled to learn what Dr. Mikuriya has been saying since 1996 (and what should come as no surprise to any person with common sense): feeling legitimate relieves anxiety!
“If Dr. Barth had not condoned the medical marijuana justification,” Powers continues, “he probably would not be using daily today and had such remarkable and serious effects. Additionally, she prescribed it for insomnia and depression. These problems are not standardly treated with marijuana but with a psychiatrist and with medications proven to be helpful, and hopefully, not harmful such as THC. Dr. Barth and I discussed it. She said she saw him two or three times since July 2004 and talked to him on the phone a few times, too.
“She said since he said it was helping him, she felt he could continue it. It is our responsibility as physicians to appropriately monitor based on reality and certainly not cause more harm by listening to an addict who is not reality based because of substance dependence. He has no insight as to why his life is essentially life-less. He likes/wants to continue to use THC.”
Powers faults Barth for “listening to an addict.” Why shouldn’t a psychiatrist “listen” to her patient? What Powers means is “heed” or “accommodate.” She concludes by repeating her initial conjecture as if it were established fact: “Dr. Barth not only mis-prescribed medical marijuana, but by authorizing it caused sickness in a previously healthy individual (per his and parents’ reports).
“Please investigate these practices. They are unethical and negligent as they caused this young man definite harm. I am not sure this harm can be reversible at this point. Sincerely, Rebecca A. Powers, MD Board Certified Psychiatrist Assistant Clinical Professor, Stanford
The letter was forwarded to an MBC district office. An investigator named Doris Pau was assigned the case on April 29 2005. On June 1 Pau phoned Dr. Powers, who agreed to contact James Hoffman’s parents on behalf of Pau. According to Pau’s report, Powers “relayed that the patient’s mother was a recreational marijuana user and smoked with the patient and his friends. I advised Dr. Powers that if this investigation revealed additional criminal activity, action would be taken against those involved.”
NOTE TO PATRICK: Was this revelation about the mother ethical on the part of Powers?
On June 16, according to the report, Pau contacted James Hoffman’s father Robert by phone. Robert Hoffman said he had “discussed his concerns regarding his son’s use of marijuana with Dr. Powers.” Robert Hoffman provided Pau with his son James’s mailing address, which was his own home address since James was living in a trailer on the property.
On June 17, “A release for authorization for the Board to receive James’s medical records from Dr. Barth was sent to James Hoffman’s home address by certified U.S. Mail. Response was due within 10 days.”
Attached to the report is a photocopy of the letter and the return receipt form, which James evidently refused to sign for because on June 24 Pau “received a Return Receipt signed by Robert Hoffman.
On August 8 Pau “received a telephone call from Robert Hoffman. Robert relayed that James accepted the letter but refused to cooperate and did not intend to return the release.” Since Robert himself signed for it after three days, “James accepted the letter” might mean that James finally became willing to read it or have it read to him. The letter was on “Enforcement Program” letterhead and stated: “The Medical Board of California is reviewing the quality of care provided to patients of Hanya Barth, MD. The Board would like to examine your medical records to verify that the care and treatment being provided to you by Dr. Barth remains at the very high standards expected of all doctors in California.
“Your cooperation is requested,” the letter goes on, “by dating and signing the enclosed authorization for the release of medical records form. Please return the signed release form to me in the enclosed, self-addressed stamped envelope within the next 10 days. Please read the authorization and the enclosed Notice to Medical Consumers to help you understand how your medical records will be used, and how your right to privacy will be protected. By assisting the Medical Board you will be providing a valuable service to all health care consumers in California.”
James did not want to get Dr. Barth in trouble. She really cared about him, which probably cut through whatever fog he was in. Maybe his protective instincts were in tact —Barth is a small, white-haired woman, soft-voiced, empathetic. Maybe he couldn’t see himself wearing a snitch jacket.
Recall that the letter from Senior Investigator Pau requesting Barth’s records was addressed to a young man who had suffered a terrible breakdown requiring hospitalization, whose present psychiatrist, Powers, had diagnosed a psychosis likely to be irreversible. Receiving such a letter from the MBC Enforcement Program would be troubling to most clear-thinking people on several levels. There’s an assurance that your privacy will be protected —but your privacy has already been violated. The doctor you like is in trouble and she got in trouble trying to help you so, in a sense, you got her in trouble. They want you to “cooperate” but what if you don’t —will your name go on some master law enforcement list of non-co-operators?
To a confused, frightened young man, the MBC letter might have seemed extremely threatening and guilt-inducing. It also may have heightened tensions within the family. Robert Hoffman, who had recently discussed the dangers of marijuana with Dr. Powers, undoubtedly urged his son to comply with the investigation. On August 16 Investigator Pau subpoenaed Dr. Barth’s records on James Hoffman. Also 8/16, “a letter notifying James Hoffman that a subpoena was served on Dr. Barth for his medical records was mailed via certified U.S. Mail. Proof of service is included with this attachment.”
The arrival of this certified letter meant that the authorities had ignored James’s unwillingness to authorize the release of his records. They had gotten them anyway by intimidating Dr. Barth. On Sept. 7, Pau interviewed Hanya Barth at the San Jose district office. Pau’s report summarizes her career thus: “Dr. Barth completed medical school in 1975 at the University of Careggi, Florence, Italy. She began two residency programs in San Francisco, Family Practice and Internal Medicine, but did not complete either. Her specialty area of practice is Family Practice. She is not Board Certified. She was in private practice in Mendocino from 1980-1989, then from 1990-1992 she worked at a methadone program in Oakland performing medical and psychiatric evaluations. From 1992 until 2003 she elected to stay home to raise seven children, two foster children, and two grandchildren. In 2003 she began a part-time practice of spiritual, psychological and medical counseling at her home and other locations, until 2004 when she opened her office in San Francisco. Since then she has worked at this office performing medical marijuana evaluations and mental and physical wellness counseling. No action has ever been taken against Dr. Barth’s medical license. She has not been involved in malpractice litigation or other civil suits. She has not been arrested or convicted of any crime. She does not use drugs or alcohol and has not been treated for substance abuse. She currently takes insulin for Type I diabetes.”
Barth told Pau that she first saw James Hoffman on July 31, 2004. The treatment she provided to him is recounted in the Investigator’s report and also in an Expert Witness Opinion written by James A. MacDonald, MD. (It is the expert witness, hired by the MBC Enforcement Division, who first drafts the charges that Deputy AGs will incorporate into a formal “Accusation.” The expert witness then testifies at the hearing in support of the Accusation. In other words, the expert witness is the key to the prosecution case.)
Dr. MacDonald, who works at the UC Santa Cruz student health center, reviewed Barth’s file on James Hoffman and listened to the tape of Barth being interviewed by Pau. His Expert Opinion states: “At the time of the first visit James was an 18-year-old with complaints of depression, insomnia and a lack of appetite… a recently graduated high school student who was getting ready to attend Chico State two weeks from the date of the appointment. The patient claims he was diagnosed with depression… about two months prior to this initial visit with Dr. Barth, though the patient believed he had been suffering from depression for over a year. He claimed he had been suffering from insomnia for three years. He had begun to self-treat his conditions with marijuana in May 2004 and claimed the practice was effective.”
James’s second visit to Dr. Barth took place on October 1. As reported by MacDonald: “The patient had dropped out of Chico State. He reported he had not been able to use marijuana reliably because he could not find a supplier at Chico State. He dropped out because of problems with insomnia and depression. He also had apparently been on a trial of Ambien and Prozac at Chico State (prescribed by whom?),” MacDonald asks parenthetically. In fact it was his own counterpart, a physician working at Cal State Chico Student Health Services.
If this story was fiction —and I wish to God it were— Chico State, famous for binge drinking, would be too pat a setting for this chapter. “The patient reported these medicines did not work,” MacDonald goes on. “Since his return from Chico State to home he had been able to access marijuana, and his self-reported use had increased from 3g/week (first visit) to 7g/week. [7 grams is a quarter of an ounce.] On this visit vitals were obtained, including a weight of 132.4, a drop of almost 14lbs, but no other formal examination appears to have been conducted except to observe that the patient was “very anxious… palms sweating… agitated. Came with friends.” The plan was to obtain counseling, get medical records for review, and to see another psychiatrist to consider a trial of Prozac again. A three-month recommendation was issued on this visit for medical marijuana.”
Barth’s account of James’s Oct. 1 visit was summarized by Investigator Pau thus: “James told Dr. Barth that he did not use marijuana after his first visit, but used Prozac and Ambien instead. He also dropped out of college… He told her that marijuana helped him sleep better at night and when he was able to sleep he functioned better… She advised him to use ‘just a little’ marijuana at night.”
James’s third visit to Barth was on December 28, 2004, after he had turned 19. As described by MacDonald: “The patient reported improvement in symptoms attributable to medical marijuana. The patient planned to attend Cabrillo College in the spring. Allusion is made in Dr Barth’s notes to the patient having explored the diagnosis of ‘SAD’ (presumably ‘seasonal affective disorder’) on the internet… The exam again included the obtaining of vital signs (weight now up to 165) and a somewhat informal mental status exam to note the patient is ‘very nervous… very articulate.’ At this visit a Medical Marijuana approval was given for one year.”
Barth granted the one-year approval in part because she considered James “trustworthy,” Pao reports. His weight gain alone —from 132 to 165 pounds on a 6′ 1″ frame— would seem to justify marijuana use, and it confirms at least part of James’s claim, i.e., that marijuana gave him an appetite.
“The next significant interaction as documented in the chart,” writes MacDonald, “took place on March 29, 2005 and is a note to indicate that Dr. Barth had spoken on the phone with Mr. Hoffman’s parents and with Dr. Rebecca Powers, the current treating psychiatrist, all of whom had concerns that marijauana was having a negative effect on Mr. Hoffman. ‘I will see James next week’ is Dr. Barth’s stated plan.”
According to Pau, “James’s parents contacted Dr. Barth and requested that she revoke the recommendation she gave to James. The parents felt that the marijuana was affecting his ability to make good choices. They told her that James decided to seek employment at a cannabis dispensary instead of working with his father. Dr. Barth recommended that they seek family counseling and referred them to therapists she received treatment from before.
“Dr. Barth admitted that there was no way of monitoring how much or how often James was using marijuana, except from what he told her. She felt that she gave him good quality care by keeping in touch with him as often as she did. She claimed that at one point she recommended that he stop using marijuana to see if it was really helping him. She recommended this to all her patients. If she found that he was unable to function while using marijuana, she would have stopped recommending it for him.”
James Hoffman’s fourth and final visit to Dr. Barth was on April 6, 2005. MacDonald’s version, as culled from Barth’s records: “Mr. Hoffman reported having had a treating psychiatrist who had approved of his using marijuana. This same psychiatrist had recently died in a motor vehicle accident. The patient’s new psychiatrist, Rebecca Powers, believed that patient’s problems stemmed from the use of marijuana. She apparently had begun prescribing Lexapro to the patient. The patient reports that he was not in school but working. Physical exam is again very scant as documented: his weight is stable at 165, vitals again taken, and an observation that the patients ‘hands clenched… sweating… very little insight into himself currently. States not depressed or anxious and all o.k.’ Assessment was ‘chronic anxiety? SAD?’ The plan was to ‘continue with psychiatrist.'”
MacDonald’s review of Barth’s file on James cites three items indicating how seriously delusional he was. 1) “Records of a visit 5/21/04 for ‘altered consciousness’ where patient was thought possibly to have ingested 21 capsules of diphenhydramine [Benadryl] and was directed to ER after consultation with poison control.” 2) Records of a visit to Scotts Valley Medical Clinic “where the clinician thought Mr. Hoffman was in the midst of a psychotic episode (vs. a bipolar break). He was referred to Dominican Behavioral Health (and… admitted). Documentation indicates the patient as having ‘bizarre thoughts with delusions, paranoid intermittently… ‘I thought I was Christ or the anti-Christ.” 3) Record of an internet chat that was apparently faxed to Barth August 15 and which MacDonald characterizes as “a thoroughly delusional screed.”
On September 14 Hanya Barth wrote a letter to the Investigator promising to make changes in her practice. “On our new intake form I am including a question regarding family members and whether or not they agree with the patient’s choice of medication lifestyle, etc. In the past I often invited families in to participate in discussing the patient’s medical care; now I am being more insistent in including them, especially when the patient is under 21.
“I have called Mr. Hoffman but he has not yet responded. I am going to try to schedule a visit with him and with his parents to include their point of view in what is going on with him. I also plan to speak with his psychiatrist again.” Barth ends by thanking Investigator Pau for “reminding me not to take anything for granted.”
On the morning of September 16 James was found dead in the trailer behind his parents’ house. He had hung himself. To lose a kid is to never be happy again, no matter what triumphs and satisfactions life may bring. To lose a kid is a tragedy even if his or her disabilities were evident at birth, even if you have six other kids who are thriving. To lose your only child —a handsome, strapping star athlete in early manhood— is too terrible to be true.
On September 19 Rebecca Powers wrote another letter to the Medical Board informing them of James’s suicide. “He had continued to use marijuana against my advice,” she reported. Even though he was working and his mood was better with medication, he still was not ‘well’! I had a more difficult time trying to convince him how dangerous his daily use of THC was (and he was decreasing its use) because another physician had OK’d its use. I strongly believe THC contributed to his depression and psychosis. I gave him articles —his parents tried to get him to quit— but all the while he was authorized to get the medical marijuana (for FDA unapproved use). Therefore he felt justified using it —because an MD had said it was ok.”
On Dec. 14 Dr. MacDonald filed his Expert Opinion on the case for consideration by Mercer and Simon, the Deputy AGs. MacDonald characterized Barth’s overall treatment of James as an “extreme departure from the standard of practice” involving
• A failure to have an adequate history and good-faith exam of the patient (an extreme departure).
• A failure to develop a comprehensive treatment plan with clear objectives (a simple departure).
• A failure to provide informed consent regarding the risks/benefits of medical marijuana (an extreme departure)
• A failure to obtain necessary consultation (a simple departure).
The next document in Patrick Hallinan’s Barth file is not the expected Accusation drafted by the deputy AGs but a “Supplemental Report” by Investigator Pau. The prosecutors evidently wanted her to interview Dr. Powers, who was not only the original complainant but who —apparently unbeknownst to Dr. MacDonald when he wrote his Expert Opinion— had continued to treat James Hoffman at her office in Los Gatos. Her treatment featured anti-marijuana exhortations and the pushing of her favored corporate pharmaceuticals.
Pau interviewed Powers at her Los Gatos office on January 26, 2006. “Dr. Powers indicated that she first met James Hoffman on March 11, 2005. Dr. Powers described James as… ‘like a human body who was just moving’ but not present. Dr. Powers conducted her own evaluation and advised James to meet with her regularly so she could monitor his medications, Lexopril (10mg in the morning) for depression and Zyprexa (10mg at night) for psychotic features…. Dr. Powers wanted to meet with James weekly but he was not compliant. She next met with him March 29, and then not again until May 5, after she had to call him to make sure he returned. Eventually they met almost every month.”
The main focus of the interview was Dr. Powers’s recollection of her only conversation with Hanya Barth, which took place March 29, 2005. “Dr. Powers contacted Dr. Barth by telephone to discuss James. Dr. Barth confirmed that she recommended marijuana use by James for depression and insomnia. Dr. Powers told Dr. Barth that insomnia and depression were not and have never been approved uses for medical marijuana. Dr. Powers felt that she was educating Dr. Barth. She told Dr. Barth that she had written text book chapters on drugs and alcohol and of her experience with running the adolescent drug program at Stanford Hospital. Dr. Powers told Dr. Barth that marijuana could make depression worse, and told her of supporting data to that effect. Dr. Barth did not agree…
“Dr. Powers told Dr. Barth that James would need residential treatment to stop using marijuana because he was addicted and could not do it on his own. Dr. Powers also told Dr. Barth that the anti-depressant presecribed to James were counteracting with the marijuana. Dr. Barth admitted to having no idea what was going on with James [being modest and honest] and agreed to contact James and reevaluate him. Dr. Powers asked Dr. Barth to recommend that James stop using marijuana. Dr. Barth said she would recommend that James stop, if it was inappropriate, but Dr. Barth thought it was okay to continue and did not believe that James would stop anyway.”
Finally, according to Pau, “Dr. Powers realized that Dr. Barth was not going to try to help James, and decided to complain to the Medical Board.”
Pau’s Supplemental Report ends with this mind-blowing bit: “Dr. Powers last met with James on August 30, 2005. He reported that he wanted to decrease his marijuana use [in response to her relentless pressure] and discontinue his prescribed medications. Dr. Powers advised against discontinuing his prescribed medications, but gave information on how to taper off the medications if he still insisted on discontinuing the medications on his own.”
In other words, the last time James Hoffman saw a doctor it was Powers, who subjected him to more pressure and intensified the conflicts that tormented him. She gave the poor kid another pep talk: Get off that bad marijuana, keep taking that good Lexapro and Zyprexa. Investigator Pau didn’t even bother to ask what prescription drugs James was on at the end, what doses he was taking, or how he described the effects —although they were so bad he’d been begging the doctor for permission to quit.
It is, unfortunately, common practice among SSRI-pushers to increase the dosage when a patient reports lack of efficacy. Had James’s dose of Lexapro had been increased since the initial 10mg/day in the morning prescribed by Powers? Had it been a shock to learn that he couldn’t just quit, he had to taper off? (People who are prescribed SSRIs frequently report being misled into thinking they can quit whenever they want to, then told otherwise.)
Lexapro is an SSRI antidepressant made by Forest Pharmaceuticals. Like all SSRIs it is slowly but surely being linked to suicide in the medical literature (while the drug companies and their paid researchers in the psychiatric establishment challenge each piece of evidence). The MBC investigator may or may not have been aware of this as she listened to Dr. Powers’s anti-marijuana exhortations. What difference would it have made? She was under orders to investigate Barth and marijuana, not Powers and Lexapro.
Pau’s Supplemental Report was forwarded to Dr. MacDonald in February and he amended his Expert Opinion to echo Dr. Powers’s extreme annoyance that Dr. Barth didn’t do what she was told. He upgraded the “failure to obtain necessary consultation” from a “simple” to an “extreme” departure from the supposed standard of care. Deputy AGs Mercer and Simon duly drafted an Accusation on behalf of the Medical Board (whose executive director, David Thornton, is the formal complainant), calling for penalties as severe as revocation of Dr. Barth’s license.
The Accusation was filed March 24 with the Medical Board of California, whose responsibility it is to conduct a hearing on the matter. Welcome to the wonderland of Administrative Law, where the prosecution hires the judge and the case is about what got written down, not what actually happened.
In the Court of Common Sense.
What is the case of MBC v. Barth about? It began when a mainstream psychiatrist demanded that a cannabis consultant defer to her choice of drug regimen —Lexapro and Zyprexa, no cannabis— in treating a young man who had suffered a terrible breakdown. The cannabis consultant would not comply and the psychiatrist filed a complaint with the Medical Board.
An MBC prosecution transforms what the matter is really about —in this case, the substantive disagreement between Powers and Barth— into a gotcha game focused narrowly on the cannabis consultant’s record-keeping and “practice standards.” In the Court of Common Sense, we’d want to examine evidence on the efficacy and safety profiles of SSRIs and cannabis. We’d hear expert witnesses critique the studies that show marijuana associated with psychosis and the studies that show Lexapro associated with suicide. But the Court of Common Sense would recognize that this case is not simply about Lexapro v. Prozac. Life and death, sanity and insanity are not simply functions of drug use. The underlying causes of most suicides involve unbearable binds. Dr. Barth’s accuser heightened and added to James’s conflicts. She pressured him relentlessly to quit and she impressed her anti-marijuana views on his parents, intensifying tension between them —mom was initially supportive of James’s use— and tension between them and James. Powers tried to talk James into residential treatment for marijuana addiction. It might have seemed like a terrifying prospect to him. Usually in such circumstances the threat of arrest will coerce reluctant people into compliance. Powers was outraged that James’s marijuana use had been “justified.” (In James’s case, residential treatment for addiction might have been a fortunate development— even though addiction wasn’t his underlying problem.) Barth’s sincerely self-critical response to the investigation of her practice —written on the eve of the suicide, not in response to it— was a plan to involve the families when patients under 21 are medicating with cannabis.
This seems like the right lesson to have drawn from what transpired. It might have been useful for James and his parents to air their conflicting attitudes towards cannabis —and everything else— in a session with Barth, a doctor not preoccupied with drugs and punishment. James’s fears and the family conflicts around marijuana were also intensified by the Medical Board investigation, especially the two certified letters, which may have led James to conclude that Dr. Barth was about to bite the dust, professionally, and that it was his fault. Thanks to a bureaucratic reform known as “vertical prosecution,” the Attorney General’s office now directs Medical Board investigations, so the AG is culpable in this tragedy, too. The Medical Board of California v. Hanya Barth, MD, can be seen as a case in which the Accuser is Guilty and the Prosecutors are complicit.
