Beverly Hills Shrink: Med Board v. Dr. Frankel, Cont.
by Fred Gardner, January 5, 2011
Imagine having to attend a public hearing at which a psychiatrist to whom you told the unguarded truth discourses on your “anti-social personality disorder.”
That was Allan Frankel's plight as his fitness to practice medicine was debated before an administrative law judge in Los Angeles Dec. 27-30. (CounterPunch recounted the background of the medical board's case against Frankel as the proceedings began.) Lucky for Frankel he was surrounded by anti-social friends, including Tyler Strause, who kept Frankel's whole anti-social community up-to-date by Twitter.
The board's expert witness, a Beverly Hills shrink named Daniel Fast, was supposed to reiterate and explain the diagnoses he had conferred on Frankel after a 63-minute “psych eval” last spring. Here are some informative gems from Fast's written report”
• Dr. Frankel was born in New York City and moved to Redwood City, CA at age 7. He was captain of the football team and valedictorian in high school but never had sex. His father, who had lost a son in the concentrations camps, was never happy…
• Of these relationships, Dr. Frankel said “I'm attracted to borderline women” and that it was “sloppy and wrong” [to prescribe for her and her daughter] but he was “in love” and “will never do it again.”
• He has a good relationship with his sister, several old friends, his three adult children and a 16-month old grandson.
• He loves his work as CEO of Green Bridge Medical Services. 25% of his referrals are from doctors in the community. He loves to help patients, especially those with MS, HIV and cancer. He is active and excited about his new ventures -testing, developing tinctures [solutions of active cannabis] and medical education about cannabis. He currently acts as a “greeter” in his business and has hired another physician to see patients.
• He reports that “life is good, even now.” The worst is the “humiliation” by the Medical Board which he believes is “political.” He has no issue with the Medical Board restrictions, i.e. to prescribe no scheduled medication or to give marijuana recommendations... He accepts being unable to enjoy wine and won't go back to doing what he was doing.
• Affective status: Mood is cheerful, optimistic and confident, inappropriate in this context. [Emphasis added.]
• There is no evidence of alterations of reality testing -no hallucinations, illusions or delusions. There is flight of ideas... There is preoccupation with the medical uses of marijuana.
Fast's bottom line: “I believe that Dr. Frankel suffers from a variety of psychiatric conditions which significantly interfere with his ability to process information, form judgments or relate a coherent history.”
Diagnosis based upon DSM-V Criteria”
• Axis I
• 304.30 Cannabis Dependence
• 305.20 Cannabis Abuse
• 292.89 Cannabis Intoxication
• Rule out underlying 296.89 Bipolar II Disorder or 301.13 Cyclothymic Disorder, Hypomanic.
• Rule out 314.9 Attention-Deficit/Hyperactivity Disorder Not Otherwise Specified.
• Axis II
• 301.9 Personality Disorder Not Otherwise Specified with Antisocial, Histrionic and Narcissistic features.
On direct examination by Deputy Attorney General Edward Kim, Fast testified that he had done eight previous psych evals for the med board. He always asks doctors to come 15 minutes early to fill out some paperwork, and most arrive 15 minutes earlier than requested. Allan Frankel, however, arrived at Dr. Fast's office seven minutes late. And he was not wearing a coat and tie, he was wearing slacks and a sports shirt. [Rosie asks, “Who wears a coat and tie in LA?” And, “Those doctors who came a half hour early —how guilty were their consciences?”]
Frankel, according to Fast, was dismissive of the medical board's charges against him. He believed the prosecution to be “a witch hunt” that was “politically motivated.” Yes, Frankel was contrite about the self-prescribing episode and some bad choices he'd made involving women, but not sufficiently contrite. In other words, Frankel, even facing loss of his license, remained his brash and breezy self.
The expert Fast testified that he himself had never approved marijuana use for depression, anxiety, or insomnia, preferring to prescribe pharmaceutical-industry synthetics. The psychoactive effects of marijuana, he mentioned, last for 14 days. An anti-social friend of Frankel's whispered, “Where can we get some of that stuff?”
On cross-examination Fast would retract all the cannabis-related diagnoses. Fleer began by calling Fast's attention to the fact that the Diagnostic and Statistical Manual itself requires the doctor to select two of the three conditions that he had pinned on Frankel. Fast said, “Oh, you're right. Well, I'll choose Dependence and Abuse.”
Fleer then had Fast read aloud from the DSM —the so-called “Bible of the American Psychiatric Association” — all the symptoms and traits that characterize Cannabis Dependence and Abuse, and got him to admit that Frankel did not manifest them! According to Tyler Strause, “Fast was kind of puny to begin with and he seemed to be withering away on the stand. He wound up saying, 'I was incorrect. I'm sorry’.”
Fleer matter-of-factly termed Fast's inaccurate diagnoses “irresponsible” and moved on to the “Not Otherwise Specified” personality disorder. Fast testified that he had based his assessment on traits he observed in Frankel such as “impaired judgment,” “flight of ideas,” “poor impulse control,” and “lack of concentration.”
Fast had been consulting some notes while testifying. Fleer asked about them. Fast said they were notes he had made during his 63 minutes with Frankel. Fleer asked for and got copies. (No notes had been provided to the defense on “discovery,” the legally required pre-trial sharing of potential evidence.) He then led Fast through a review of the notes, which revealed that Frankel had proceeded from topic to topic in a logical order.
How often, Fleer asked, did people in the general population exhibit aspects of an unspeficied personality disorder? This brought the stunning concession that Allan Frankel did not exhibit more signs of a disorder than most people Daniel Fast has met! “I couldn't believe what I was hearing,” says Fleer, who has handled med board cases for more than 20 years.
And there went the last of the prosecution case, if Med Board v. Frankel was being tried in the Court of Common Sense. But an administrative law hearing is more like the Court of Alice in Wonderland, on it went.
In Defense of Frankel
The doctor who approved Allan Frankel's cannabis use, Christine Paoletti, MD, is a Santa Monica obstetrician whose practice has expanded to include cannabis consultations. Her testimony was “considered and deliberate,” according to our source in the gallery. She had recommended that Frankel seek out and use CBD-rich cannabis, which is reported to be more effective against anxiety than high-THC strains. The judge picked up on this and Dr. Paoletti got to explain how Cannabidiol had been bred out of Cannabis grown for maximum psychoactivity, but that CBD-rich strains were now becoming available for medical users.
According to Paoletti, the judge took over her cross-examination from Deputy AG Kim because “he wasn't cutting to the chase and she got frustrated. She knew very little but asked good questions. She asked why I hadn't asked for a note from his psychiatrist [confirming his diagnosis]. I had asked, but he hadn't brought it. But he did have his primary care records documenting Insomnia and Anxiety. And that was substantial enough to justify the recommendation.”
Paoletti also noted that she had attended meetings of the Society of Cannabis Clinicians at which Frankel took an active part “and was always very cogent.”
Paoletti was asked by ALJ Formaker whether she had questioned Frankel about his past drug dependence. She said, “'No, he volunteered his history. I asked him to elaborate on certain aspects of it. When he was recovering from his cardiomyopathy he became concerned about addiction to Vicodan and went through a program.”
Paoletti considers Frankel's use of cannabis as an alternative to Vicodin “a classic example of harm reduction. I have several patients who have been able to get off their pain medications thanks to cannabis.”
Formaker asked Paoletti if she had drug-tested Frankel. She said no, but she knew that he was being drug-tested as a condition of his probation. “My job,” she informed the judge, “was to determine 'Did he have a medical condition that merits the use of cannabis?' And 'Is he stable?' Yes and yes.”
Two other MDs testified that Frankel is fit to practice: Robert Gerner, a psychiatrist who is seeing Frankel on a weekly basis (in according with the terms of his probation), and Glenn Gorletski, an internal medicine specialist who praised Frankel's character and skills as a physician. Gerner said that Frankel was coping very well while on probation. “His treatment regimen is working,” he said. “My advice is: 'don't change anything’.”
Frankel himself took the stand to state that he was aware of his prior transgressions and appropriately remorseful. His goal was simply to show the judge that he could think and speak coherently. By design, he did not expound on medical cannabis. Fleer was concerned that his expertise could be mistaken for a preoccupation.
Kim's cross-examination was “lame,” according to Tyler Strause. “I was amazed how much of his time Kim devoted to flipping through his notes and papers trying to find some point with which he could contradict Dr. Frankel. He would flip through his papers for 30 seconds, then ask a three-second question. Over and over.”
Kim's closing argument, says Fleer, revealed an assumption that Frankel had been “high” when he went for his appointment with Fast and will be “high” when treating patients, if allowed to practice again. Kim repeatedly reprised Fast's complaint that Frankel had been seven minutes late and casually dressed. “Kim got very worked up,” says Fleer, “trying to say that if you don't wear a coat and tie, it means you're high.” (Move over, Johnnie Cochran.) “He really couldn't accept the idea that Dr. Frankel could use marijuana and see patients. He had to be 'high' and therefore dysfunctional.”
At the very end of the hearing, the judge told the lawyers there was an issue on which she needed clarification, either via briefs or right then and there. Fleer said best to deal with it now if we can, what is it? The judge asked whether Depression and Anxiety were conditions to which Prop 215 applied. The relevant sentence was read to her —the first sentence of the initiative— and she acknowledged that the conditions were covered. Frankel's friends were shocked by her level of... let's call it naivete at that late stage of the proceedings.
In both his written report to the medical board and his direct testimony before ALJ Formaker, Daniel Fast lingered on the transgressions involving women and prescription drugs that got Allan Frankel in trouble initially. But Frankel hasn't skirted any med board guidelines since he started Green Bridge Medical Clinic in 2006, and he isn't accused of having done so. The present accusation boils down to an insufficient show of remorse over things that happened before Frankel became a medical cannabis user and proponent.
The judge has 30 days to write a “proposed decision,” and the med board has another 30 days to decide whether to accept, reject, or modify it. The whole board then has to vote on the decision at a quarterly meeting. If the decision isn't favorable, Frankel will seek a writ in Superior Court to overturn it.
Fleer doubts that Attorney General Jerry Brown was aware that his office was prosecuting the med board's case against Frankel. In fact, says Fleer, the doctors who make up a majority of voting board members may not be aware that Frankel's license was —and is— at risk. Board members come and go, while the staff, which is dominated by investigators from the Enforcement Division, stay unto retirement (and beyond, thanks to double-dipping). Fleer says he is “almost certain it was the head of the Enforcement Division who chose to go after Dr. Frankel” for taking the same medicine he recommends to patients.
Fred Gardner edits O'Shaughnessy's, the journal of cannabis in clinical practice. He can be reached at email@example.com.