Tennant vs. State Agencies

Forest Tennant, In Pro Per
Veract Intractable Pain Medical Clinic
West Covina, CA 91791
(626) 919-7476
Facsimile (626) 919-7497

Plaintiff, In Pro Per

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

Forest Tennant, M.D., and DR. P.H. Case No: BC288765

Complaint for Declaratory Relief

Plaintiff

Vs.

CALIFORNIA STATE AND CONSUMER SERVICES AGENCY;

DEPARTMENT OF CONSUMER AFFAIRS; MEDICAL BOARD OF CALIFORNIA; and DOES 1 Through 10, Inclusive;

Defendants.

COMES NOW plaintiff, FOREST TENNANT, an individual and hereby complain as follows:

FIRST CAUSE OF ACTION

[DECLARATORY RELEIF against All Defendants]

1. At all times relevant herein, each of the Defendants was, and is, an employee of each of the remaining defendants, and was at all times acting within the course and scope of said agency and employment.

2. The true names and capacities, whether individual, corporate, associate, or otherwise, of individual Defendants named herein as DOES 1 through 10, inclusive are unknown to plaintiff, who therefore sue said defendants by such fictitious names, and will ask leave to amend this complaint to set forth the true names and capacities when the same has been ascertained. Each of the fictitious Defendants are responsible in some manner for the events alleged herein.

3. Plaintiff seeks redress from defendant, the STATE AND CONSUMER SERVICES AGENCY or from Defendant, the DEPARTMENT OF CONSUMER AFFAIRS; from defendant, MEDICAL BOARD OF CALIFORNIA, from DOES 1 through 10, inclusive, and from one or more or all of them. All defendants have been joined herein so that the question of liability and the extent thereof of Defendants to plaintiff may be determined in this action, and so that the Court may award judgement to plaintiff as against defendants, either jointly, severally, or in the alternative.

4. Patients being treated by plaintiff are in the following communities in California: West Covina, Oxnard, Santa Maria, and Grass Valley. The principal place of business is located in West Covina, California. The Plaintiff actively treats 100 and consults with other physicians on approximately 200 intractable pain patients.

5. Plaintiff is informed and believes, and on the basis of such information and belief alleges, that the defendants are governmental entities operating under the auspices of the State of California.

6. The California Intractable Pain Act defines intractable pain as " a pain state in which the cause of pain cannot be removed or otherwise treated and which the cause of pain cannot be removed or otherwise treated and which in the generally accepted course of medical practice no relief or cure of the pain is possible or none has been found after reasonable efforts, including, but not limited to, evaluation by attending physician and surgeon, and one (1) or more physicians or surgeons specializing in the treatment of that area, system, or organ of the body perceived as the source of pain". Severe, intractable pain is a form of chronic pain, which is unrelenting, fixed, incapacitating, and not curable by any known medical or surgical procedure. Plaintiff only admits intractable pain patients when he believes the patient�s life expectancy, without opioid treatment, generally to be about two years. Many, despite best efforts, will perish within one year. The patients are by definition, terminal, and in order to provide the intractable pain patient with some quality of life due to their terminal nature, treatment is given with narcotic opioid pain killers for control of both baseline and breakthrough pain, Opioids are used as a last resort when multiple, non-narcotic and other standard pain treatments, such as physical and/or psychological therapy have failed. Treatment is done with the specific purpose of prolonging life only with the administration of recognized legal drugs approved by the U.S. Food and Drug Administration.

7. California Business & Professions Code S725 provides that pursuant to S2241.5, no physician or surgeon in compliance with the California Intractable Pain Treatment Act shall be subject to discipline for lawfully prescribing or administering controlled substances in the course of treatment of a person for Intractable pain. The patient is given the choice of eight opiate drugs, which are commercially available to treat the pain. Intractable pain treatment does NOT treat the cause, but only the resultant pain. The patient is likewise given the option of method of delivery of the medication(s). This election by the patient is similar if not identical to the option given to breast cancer patients in selecting the particular medications and method of treatment.

8. The California Pain Patient�s Bill of Rights provides that a patient may reject treatment modalities such as psychotherapy, surgery, and implants of devices and may receive therapy to relieve severe, chronic intractable pain in a dosage deemed medically necessary. Because of the terminal nature of the patient�s condition and necessity for treatment and opiate use, the treating physician is made immune from review for discipline. Indeed the patient has the right to the medications to be administered, the method by which the delivery of the medication is done, and the dosage level which relieves their pain. Opioid dosages are determined by initially starting at an equivalent dosage which the patient is taking at the time of referral to the plaintiff. The dosage which the patient is taking at the time of referral to the plaintiff. The dosage is titrated upward over a period of time until the patient reports good pain control, is not confined to bed or house, and can function without sedation or impairment. At each clinic visit pupil reaction, pulse rate, and ambulation are assessed to determine opioid tolerance. There is no upper maximum dosage, limit, or number of different opioids taken to reach pain control and there can be no evidence of sedation or impairment.

9. In 1998, just after the passage of the Pain Patient�s Bill of Rights, plaintiff opened the Veract Intractable Pain Medical Clinic, and held out to other physicians that he would accept referrals and treat severe pain patients who meet the definition of intractable pain. Written clinical protocols were developed to Identify and diagnose intractable pain and treat patients who voluntarily choose high doses of opioid therapy rather than other modalities, including psychotherapy, surgery, and implanted devices. The clinical protocol was specifically designed to comply with the California Statutes and the standards for pain treatment recommended by the California Medical Board and the National Federation of Medical Boards. In this protocol, patients retain primary care physician and the plaintiff only treats the intractable pain and no other physical or psychological problem. Patients state in writing which pain treatment modalities they reject under the Pain Patient�s Bill of Rights. Patients are given a history, physical examination, and lab tests aimed at finding physiologic evidence of severe, uncontrolled pain. Patients attend the clinic monthly on an indefinite basis. At each visit their treatment, physical and psychological status, pain control, and quality of life is assessed by the plaintiff and his nursing staff. Family involvement is required. All patients give written informed consent that they understand the risks and the benefits of treatment. They agree to follow program rules or be discharged and they include regular attendance, lack of diversion, and restricting the prescribing of pain drugs to only the plaintiff and no other physician. Patients also agree to "off label" use of FDA approved drugs since many common drugs used for pain treatment are primarily marketed for such conditions as depression, muscle relaxation, seizures, or high blood pressure. Active addicts and alcoholics are rejected for treatment and all controlled drugs are prescribed to be filled at pharmacies and not dispensed in the clinic. As patients may near terminus, they may be placed in hospice or home care attendance status and house calls may be made by the plaintiff and his nursing staff. Overall, about 55% of the cases are due to spine trauma and 45% due to medical condition such as autoimmune, headache, or metabolic conditions. Patients declare in writing that they are intractable pain patients and sign statements that they are not addicts and use opioids only for legitimate pain purposes. They must produce medical records such as x-rays, laboratory or physician reports indicating that they have a bonafide incurable cause of their pain and that specialist physicians have previously evaluated them.

10. The Plaintiff�s criteria for determining whether or not a patient will be treated for intractable pain requires the following six (6) elements: (1) Referral from an outside physician or pain center; (2) The patient is currently taking opiate drugs for pain control; (3) Intractable pain has been present for six (6) months or more; (4) multiple previous non-narcotic and standard pain treatments have failed; (5) The pain is unrelenting, severe, and debilitating; and (6) Life expectancy will be greatly shortened without the treatment.

11. Specific extensive records are developed and maintained. Each patient�s records contain the following subsections: (a) summary page; (b) eligibility; (c) Medical visits; (d) Admission reports; (e) Administrative reports. These comply with the guidelines of the National Federation of Medical Boards and the California Medical Board, which recommended physicians treat intractable pain by: (1) History and physical; (2) Treatment Plan; (3) Informed Consent; (4) Periodic Review visits; (5) Consultations when necessary; (6) Written records; (7) Compliance with controlled substance laws.

12. The eligibility record keeping requirements of FOREST TENNANT requires a summary and identification; a finding or declaration of intractable pain and eligibility for opioid treatments; steps for medical necessity of opioid drugs; detailed medical necessity for high dosage opioid therapy; progress and monthly status reports completed by both patient and clinicians; a physician�s referral to intractable pain treatment; diagnostic procedures, and laboratory reports.

13. The requirements for the "Medical Visits" section of the patient�s record, all intractable pain visits, periodic reviews and reports are filled in chronological order, paying careful attention to specificity. All intractable pain patient files must include a complete chronological record of all lab reports taken. The Intractable Pain Program "Admissions" section details basic data, reference to the referring physician, a reason for the pain, a list of opioids previously used to treat same, the description of pain, current treatments and medications, as well as a past history. The "Administrative" section of the records contains informed consent, as well as various agreements regarding the treatment procedures.

14. In June 2002, the Defendants challenged the very foundation of intractable pain treatment. Plaintiff is informed and believes, and on the basis of such information and belief allege, that the defendants are reviewing intractable pain patient charts and doing an investigation about dosage levels, qualification of the patient being in the Intractable Pain Patient Program, whether the physician is aiding or abetting a narcotic addict, and whether or not the medications prescribed are excessive. Pharmacy records detailing triplicate opiate prescriptions of at least sixty (60) patients have been obtained without subpoenas with no notice to Plaintiff or his patients, creating an open-ended "fishing expedition" not authorized by the Pain Patient�s Bill of Rights and in fact, expressly prohibited by the legislation. Actions pending in three (3) cases have been filed with various boards and offer probability for inconsistent findings and opposite of previous compliance findings with the Intractable pain Act and Medical Board Guidelines by other medical Board offices. For Example � in re John ***** (San Jose); in Re Wilma ***** (San Bernardino, and In Re Greg ***** (San Bernardino):

    (a) John ***** is a 40 year old male who is demented, and mentally challenged, with an I.Q. of About 60 �70. He was referred to plaintiff on June 26, 2001. He required a caretaker for medication administration due to his limited mental capacity. He sustained severe head trauma 14 years prior and was in a coma for over a month. The trauma left him with seizures and a constant, severe headache and spine damage, documented by MRI. He was treated with opioid drugs at a pain clinic in Apple Valley for several months and then moved to live with a caretaker in Santa Maria in 2000, who desired pain care for him and enrolled him in the local methadone program for addicts. The attending physician and the county social worker determined after a time that he really needed a pain clinic, since he was not an addict, but physically dependant on opioids for pain relief. He was referred by the methadone clinic physician and the county social worker, to the Santa Maria Veract Intractable Pain Medical Clinic. His opioid medication was continued until the clinic was sold in September 2002, and his case was transferred to another pain specialist. He functioned well throughout his treatment, according to his caretaker.

    (b) Greg ***** is a 40 year old male, admitted on June 2, 1997. He had severe spinal degeneration secondary to falling down stairs in 1983. He had been treated prior to referral by a number of pain modalities, including 18 surgeries. As part of his treatment, he had three (3) morphine pumps that had to be surgically implanted and removed leaving residual damage to the spinal cord and brain from infections. He was referred to Veract Intractable Pain Medical Clinic for medical management, at which time Mr. S**** repeatedly claimed he could not take oral opioids due to a bleeding hiatal hernia. He therefore desired injectable Demerol, a potent opioid since it had been the "only" pain reliever that had proved to be effective prior to treatment by the Plaintiff. Mr. ***** believed he had a right to Demerol under the Pain Patients� Bill of Rights. He was carefully explained the risks and signed consent agreements that he accepted the risks of injections. In fact, his legs were grossly infected at the time of admission to the Veract program, from Demerol injections prescribed by referring physicians. Mr. ***** was treated with Demerol and adjunctive medication, including other opioids. Although totally disabled, he repeatedly claimed, at his monthly visits, that his quality of life had improved. Unfortunately, his leg infections were present on admission, progressed and requires surgeries. Nevertheless, Mr. S**** continued to desire Demerol injections, which he believed he was entitled to receive. On August 10, 2002, the patient voluntarily discharged himself for failure to adhere to the strict rules of treatment, including obtaining opioids from another physician.

    (c) W**** S**** is a 34 year old woman with a 16 year history of Systemic Lupus Erythematosis, admitted to treatment on march 4, 1999. Her primary physician and rheumatologist treated her with low dosages of opioid drugs, which did not control her pain in her joints, muscles, and chest. She had not responded to multiple non-opioid treatments, including psychotherapy. She sought out the Veract Intractable Pain Medical Clinic due to being bed-bound in excruciating pain for which she couldn�t not find relief. She reported she would commit suicide if she had to endure her pain much longer. With treatment, she left her bed-bound state and was able to care for her family. She and her family filed a letter with the Plaintiff stating that his treatment saved her life. In January 2002, she had improved to the point that her pain care was delegated to her primary doctor with the Plaintiff acting only as a consultant. After she was treated with multiple opioids and other pain relieving drugs, her condition greatly improved. She turned down additional psychotherapy with a psychiatrist. However, her HMO complained to the Medical Board that her opioid medications were excessive, and that she should see a psychiatrist, which she rejected under the belief that the pain patients� Bill of Rights permitted rejection of all treatment modalities.

    (d) Despite over six (60 months of inquiries, the medical Board Investigators have refused, and continue to refuse, to respond to Dr. Tennant as to whether treatment is appropriate. The W**** S**** inquiry was initiated October 21, 2002; The John ***** inquiry was June 14, 2002; and the Greg S**** inquiry was November 21, 2002. There has been sufficient time and opportunity to review each case and communicate with the plaintiff. Since the medical Board offices have previously reviewed some of the Plaintiff�s Intractable pain cases and responded within 30 days, that Plaintiff is in Compliance with California Intractable Pain Act, communication has inexplicably been withheld and indicates that various Medical board officers are judging cases treated under the identical protocols in an inconsistent manner.

15. The Plaintiff, FOREST TENNANT has requested, on at least three (3) separate occasions, that the investigation be completed and that the results be revealed. If the Intractable Pain Patient Treatment Program herein above outlined is declared illegal, or the procedures held to be insufficient, treatment in the state of California will cease immediately. Plaintiff cannot treat seriously ill patients without assurances that his present cases are being treated appropriately within California Law. Plaintiff�s patients must know if they can continue treatment or return to their previous bed-ridden, painful state. There is a substantial waiting list of patients desperately wanting to be treated. No treatment can be initiated until the Defendants make a determination whether or not treatment specifically at the Veract Intractable Pain Medical Clinic is acceptable pursuant to existing legislative guidelines.

16. An actual controversy has arisen and now exists between the Plaintiff and the Defendants, and each of them, concerning their respective rights and duties pursuant to the Intractable Pain Act and the patients� Bill of Rights. Plaintiff maintains that the program outlined above requires that a patient be determined to fit into the intractable pain patient category through specific steps, that adequate records be kept, and that no questions may be raised as to amount, term and type of treatment received in the Intractable Pain Patients� patient program as it is subject to the election of the patient. Whereas the Defendants, and each of them, may dispute this contention, and contend that treatment of intractable pain patients may be restricted as to what types of medications and dosages are prescribed, the route of administration, the frequency of the medication, the amount of the medication, and other factors heretofore, which are undefined, with no notice given to the patient. Each office of the Defendants and their subsidiary offices, and each of them, is autonomous, the action of one Not binding upon the other, therefore promoting inconsistent application of the law.

17. Plaintiff desires a judicial determination of its duties and obligations of the Intractable pain treatment cited above, pursuant to the pain Patients� Bill of Rights and existing legislation regarding intractable pain.

18. Such declaration is necessary and appropriate at this time in order that the Plaintiff assert his rights and duties with respect to providing treatment for intractable pain and avoid being micro-managed, second guessed, and/or instructed for politically correct dosages prescribed for patients who are ill, and in many cases, terminal. Plaintiff cannot manage if the Defendants insist on patients being recycled through the modalities such as psychotherapy that have not previously worked or which are rejected by the patient.

19. Plaintiff, FOREST TENNANT, who operates Veract Intractable Pain Medical Clinic has treated intractable pain since 1977. If the State law is enforced regarding intractable pain patients, then, and only then, can he continue to practice intractable pain medicine in the State of California. Absent the application of the statutory standard of care, he cannot prescribe the extraordinary medications necessary to solve intractable pain issues.

20. On the basis of the foregoing averments, the Plaintiff respectfully requests that this court declare; 1) what is necessary for a patient to be qualified to be in the intractable pain patient category; (2) what records are necessary to be kept regarding treatment of the intractable pain patient; and (3) that no one can monitor or discipline a physician for treatment of intractable patients, and/or monitor dosages prescribed for intractable pain; (4) What treatments may the patient request and obtain or reject.

21. The intractable pain law is actually composed of the Intractable pain Treatment Act of 1990, found in Business and Professions Code S2241.5; Assembly Bill 2305, passed February 19, 1998, which amended Business and Professions Code SS725, 1367.215 and 2024 and added Health and Safety Code S1367.215; and the October, 1994, "Medical Board Guidelines for Prescribing Controlled Substances for Intractable Pain". In order to coordinate existing law and effectively administrate uniform application, the following declaration of administrative process likewise need to be made by the court:

(a) The only expert qualified to, and that may review an intractable pain patient�s records is a physician whose primary practice is dedicated to Medical (not Surgical) management of intractable pain as defined by Business and Professions Code S651, as amended, effective August 4, 1997.

(b) The standard of care in an intractable pain case is statutory, extraordinary, and totally discretionary with the doctor�s election and patient�s consent. There can be no peer review.

(c) Any review of an intractable pain charge is based on the intractable pain laws not the Penal Code. Because of the Plaintiff�s elective conduct, notice must be given the patient and the doctor upon instigating the case review. The review, because of on-going life-support treatment, must be concluded and published within (4) weeks of instigation.

(d) If "Off Label" use of medication is desired, written waiver is all that is necessary to authorize use of the medication to specifically treat intractable pain, and cannot thereafter be questioned.

(e) A decision of any single Medical Officer or Examiner involving Intractable Pain should be binding on the Defendants, and each of them.

(f) Any evidence of active or current abuse by the patient of the prescribed opioids results in the patient being disqualified from the program. The treating physician has the right and duty to discharge a patient from the program who is diverting or breaking the rules of the program.

(g) Any investigation regarding Intractable Pain Patients shall be limited to the treatment of Pin. Peripheral issues regarding additional treatments of other medical or psychiatric conditions are not to be the subject of the investigation involving Intractable Pain. The plaintiff cannot force the patients to accept psychotherapy or other pain treatment.

WHEREFORE, Plaintiff prays judgement against the Defendants, and each of them as follows;

1. For a Declaration of the rights between plaintiff and the Defendants, and each of them, that once a patient is declared to be in the intractable pain category, and adequate records are kept, that the defendants, and each one of them, may not monitor, discipline, or review for any reason the intractable pain patient�s treatment;

2. For costs of suit incurred herein; and

3. For such other and further relief as this Court deems just and proper.

   
   DATED: January 16, 2003.

   Respectfully Submitted,
   FOREST TENNANT, Plaintiff

   In Pro Per