A Santa Fe psychiatrist claims that a medical doctor employed part-time by the New Mexico Department of Health is routinely denying patients who suffer from post-traumatic stress disorder safe access to medical marijuana. A lawsuit filed last week contends Dr. Steven Rosenberg is unlawfully denying cannabis to patients if their doctors don’t submit proof that they’ve already tried prescription drugs to treat the symptoms.
“That’s outside his statutory authority,” Attorney Brian Egolf tells SFR.
In a lawsuit filed on behalf of Dr. Carola Kieve in the First Judicial District Court last Friday, Egolf also contends Rosenberg is in violation of the state’s Governmental Conduct Act because he owns Albuquerque Integrative Medicine, a medical clinic in Albuquerque dedicated solely to determining his own patients’ eligibility.
“He performs the same function in private practice as well
in his state employee position,” Egolf alleges in the complaint. "Each time Dr. Rosenberg denies an application submitted by a competitior's patient he takes an official action that affects his own personal interest."
Kieve and Egolf want a judge to declare the department’s rules and requirements relating to PTSD patients' applications invalid. They point to the Lynn and Erin Compassionate Use Act, which only requires patients to submit four items with their paperwork: patient's name, address, and date of birth, their physicians name along with a written certification of eligibility and the name, date of birth, of a primary caregiver, if any.
“No other items are required,” says Egolf.
But Rosenberg, according to the lawsuit, which names both the Department of Health and the Medical Cannabis Advisory Board as defendants, has been asking for detailed explanations about why commercial prescriptions haven’t worked and has allegedly threatened to take Kieve to the New Mexico Medical board for review based on her belief that she doesn’t need to provide medical records in support of medical cannabis treatment for her PTSD patients.
Egolf and Kieve contend patients who are certified by their doctors can only be denied a medical marijuana license in New Mexico if the health risks of using cannabis outweigh the health benefits or if information on the application is false.
While the law doesn’t specifically require medical records to support written certification, it does authorize the secretary of health to make the final decision on what medical conditions can be treated with cannabis.
“There’s nothing in the act about proving that other therapies have been attempted first,” say Egolf. “It doesn’t grant authority to the department to create those types of rules.”
Kieve claims she didn’t submit a list of her patient's prescriptions because in her medical opinion there were no commercial pharmaceuticals that would have been appropriate and therefore none had been attempted. Under the current rules, patients who apply for the medical cannabis program under qualifying conditions other than PTSD don’t have to submit proof they’ve tried pharmaceuticals or alternative treatments.
Egolf also wants a judge to rule on whether it's legal for Rosenberg to even do the job for the state.
“As a result of his dual roles – one private and one public -- Dr. Rosenberg is routinely placed in the position of approving or denying applications submitted by his economic competitors, namely other physicians whose patients didn’t chose Dr. Rosenberg for certification,” writes Egolf.
The Governmental Conduct Act appears to supports Egolf’s contention stating, "A state employee should be disqualified from engaging in any official act directly affecting the public officer’s or employee’s financial interest.”
When SFR originally reported a potential conflict of
interest with the hiring of Rosenberg in August 2013, Department of Health
Spokesman Kenny Vigil said he would only be working 20 hours a week and would
not evaluate his own applications.
Last April, before being hired by the Department, Rosenberg testified
against another doctor at the medical board, after he was retained as an expert
to review that physicians’ medical records and program certifications.