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Administrative law judge weighs penalties against a Tallahassee marijuana physician

Medical-marijuana-sign.jpg
Laurie Avacado
/
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Joseph Dorn is accused of not conducting a physical exam of two patients and employing a "trick or scheme." But Dorn claims he was the one tricked, by undercover agents who lied about their conditions.

State health officials are asking an administrative law judge to permanently ban a Tallahassee physician from ordering medical marijuana for patients, suspend his medical license for five years and impose a $10,000 fine, after an investigation that included undercover agents posing as patients.

The Department of Health’s proposed penalties against physician Joseph Dorn – who has practiced in Florida for more than three decades – date back to a 2019 complaint alleging that the physician violated state law by failing to conduct physical examinations of “Patient O.G.” and “Patient B.D.” The complaint also accused Dorn of employing a “trick or scheme” in the practice of medicine.

Administrative Law Judge W. David Watkins, who held a hearing in Dorn’s case in October, is weighing proposed recommended orders submitted Thursday by the health department and Dorn’s lawyer, Ryan Andrews.

Andrews maintains that the doctor didn’t do anything wrong.

“Ironically, the only trick or scheme employed in this case was that of petitioner (the agency), by intentionally sending B.D. and O.G. to Dr. Dorn to trick him into ordering medical marijuana for B.D. and O.G. based on their presentation of unlawful falsehoods concerning their qualifying conditions (i.e., PTSD and anxiety, inter alia),” Andrews wrote in his proposed recommended order.

Health officials accused Dorn of failing to “appropriately vet his patients” and follow a 2017 law requiring physicians to use certain procedures before determining patients are eligible for medical marijuana, such as deciding that its use would outweigh potential health risks.

“Instead of recognizing this responsibility, respondent (Dorn) used his designation as a qualified physician to liberally qualify patients to receive medical marijuana by only performing perfunctory consultations and ignoring many of the requirements imposed by the Legislature,” the agency’s lawyers wrote in their proposed recommended order.

But Andrews argued the Department of Health “offered no evidence whatsoever to support its allegation” that Dorn failed to determine that the health benefits of marijuana outweighed the risks for O.G. and B.D. Andrews noted the department does “not know what the health benefits or risks are of medical marijuana,” which he called “shocking in light of the fact that DOH is the agency charged with regulating qualifying physicians and medical marijuana.”

The complaint against Dorn involves department employees “who lied to Dr. Dorn about their conditions and were actively trying to be evasive and untruthful” but doesn’t include facts from any of the doctor’s many genuine patients, Andrews wrote.

The state agency’s “position is that because O.G. and B.D. were lying about their conditions, it was impossible for Dr. Dorn to have concluded that the benefits of medical marijuana outweighed the risks for O.G. and B.D., placing Dr. Dorn in a position of ‘heads I win tails you lose’ in favor of the health department,” he argued.

The 2017 law, aimed at carrying out a constitutional amendment that broadly legalized medical marijuana, requires doctors to undergo training to be qualified by the state to order cannabis for patients and lays out requirements for physicians before certifying that patients are eligible for the treatment. The law also makes it a crime for patients to lie to doctors about their conditions to obtain marijuana.

The complaint against Dorn centers on visits by investigators Brent Johnson, who posed as “Patient B.D.,” and Ben Lanier, who posed as “Patient O.G.”

In November 2017, Johnson told the physician he had anxiety, difficulty sleeping, cold sweats, back pain and leg cramps following a car accident eight years earlier. According to the complaint, Dorn also entered other symptoms associated with PTSD in B.D.’s patient record and approved him for medical marijuana.

During a visit with Dorn five months later, Lanier presented a handwritten medical record saying that O.G had been diagnosed with post-traumatic stress disorder by the military a decade earlier.

Lanier, who was one of the state’s witnesses during the October hearing, said he told Dorn he had anxiety after serving in Kandahar, Afghanistan, where the doctor’s son had served in the military.

O.G. provided to Dorn a “single-page, handwritten, barely legible document purporting to be a medical note from Camp Pendleton, dated Dec. 19, 2008,” the state’s proposed order said, adding that the investigator “could not read most of the note and did not know more about its content outside of it stating that he had symptoms of PTSD.”

Had Dorn inquired further into O.G.’s purported military experience, “it would have been quickly revealed that O.G. was not prepared to field even the simplest questions,” health officials argued.

But Andrews maintained that Dorn “had a reasonable belief” that O.G. had PTSD and that the physician “went through a full assessment” of the undercover agent’s medical history.

“Dr. Dorn did not rush O.G. out of the consultation. … Dr. Dorn did not refuse to answer any of O.G.’s questions. Dr. Dorn did not cut O.G. off or prevent him from asking or answering questions,” he argued.

The state also accused Dorn of failing to conduct a “physical examination” of the agents before deciding they were eligible for treatment, as required by the 2017 law.

But Andrews argued that the doctor performed a “visual examination” of the fake patients and that nothing in the law requires a hands-on evaluation.

The issue arose during Office of Medical Marijuana Use Director Chris Ferguson’s testimony at the October hearing, where Andrews grilled him about the law.

Ferguson’s office is responsible for implementing the law, but the director “has no idea whether a qualifying physician is required to physically touch a patient, even though the statute explicitly does not require it,” Andrews wrote.

But the Department of Health said in its proposed order that Ferguson’s office “does not regulate medical professionals and is not responsible for implementing or enforcing the allegations” in the complaint against Dorn.

“It would be inappropriate to rely on Mr. Ferguson’s lay opinion regarding his interpretation of these statutes,” they wrote.