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Gersten v. Sun Pain Management, P.L.L.C.

Court of Appeals of Arizona, First Division

April 18, 2017

ADAM GERSTEN, an unmarried man, Plaintiff/Appellant,
v.
SUN PAIN MANAGEMENT, P.L.L.C., an Arizona professional L.L.C.; DR. RONALD S. BURNS and JANE DOE BURNS, husband and wife, Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2015-091327 The Honorable David King Udall, Judge

          Evans, Dove & Nelson, P.L.C., Mesa By H. Lee Dove, Trevor J. Fish Counsel for Plaintiff/Appellant

          Holden & Armer, P.C., Phoenix By Carolyn (DeeDee) Armer Holden, Michael J. Ryan Counsel for Defendants/Appellees

          Presiding Judge Patricia K. Norris delivered the opinion of the Court, in which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.

          OPINION

          NORRIS, Judge

         ¶1 In 2010, Arizona voters, exercising their power to enact legislation by initiative, adopted the Arizona Medical Marijuana Act ("the Act"). Section 3 of the Act, codified at Arizona Revised Statutes ("A.R.S.") section 36-2813(C) (2014), states that a registered qualifying patient's use of medical marijuana "must be considered the equivalent of the use of any other" physician directed medication and will not "otherwise disqualify" that patient from medical care. The dispositive issue in this appeal is whether a registered qualifying patient may assert a private cause of action against his treating physician for an alleged violation of this provision. We hold that that no such cause of action exists and therefore affirm the superior court's dismissal of Plaintiff/Appellant Adam Gersten's complaint for damages and equitable relief against Defendants/Appellees, Sun Pain Management, P.L.L.C. and Ronald S. Burns, M.D.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 In May 2010, Gersten became a patient of Dr. Burns.[1] Gersten suffers from chronic pain related to Crohn's disease, a "debilitating medical condition" under the Act. A.R.S. § 36-2801(3)(a) (2014). After being treated by Dr. Burns with prescription medicines, including Demerol ("the prescription medicines"), with mixed results, Gersten informed Dr. Burns and his colleagues at Sun Pain that he intended to obtain a certification for medical marijuana. Subsequently, in early October 2014, after he received his "registry identification card" and became a "registered qualifying patient" under the Act, Gersten began using medical marijuana. See A.R.S. § 36-2801(14). Dr. Burns then discharged Gersten as his patient.

         ¶3 Gersten sued Dr. Burns and Sun Pain (collectively, "Dr. Burns") and alleged Dr. Burns had discharged him as a patient solely because he was using medical marijuana in violation of A.R.S. § 36-2813(C). That statute reads as follows:

For the purposes of medical care, including organ transplants, a registered qualifying patient's authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.

         For the alleged violation of A.R.S. § 36-2813(C), Gersten sought damages and equitable relief, including an order requiring Dr. Burns to continue treating him in "the same manner, at the same rate, and at the same standard of care" as before his discharge.

         ¶4 Dr. Burns moved to dismiss Gersten's complaint under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing, as relevant here, that A.R.S. § 36-2813(C) did not create a private cause of action for its alleged violation. Without any evidentiary support, see infra ¶ 6, Dr. Burns also argued he had discharged Gersten because Gersten's use of medical marijuana was against his medical advice and contracted plan of care.

         ¶5 The superior court granted Dr. Burns' motion.[2] Despite a lack of supporting evidence, the court found Gersten had acted against Dr. Burns' medical advice and plan of care ...


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