from the Superior Court in Maricopa County No. CV2015-091327
The Honorable David King Udall, Judge
Dove & Nelson, P.L.C., Mesa By H. Lee Dove, Trevor J.
Fish Counsel for Plaintiff/Appellant
& 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.
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.
AND PROCEDURAL BACKGROUND
In May 2010, Gersten became a patient of Dr.
Burns. 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.
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
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
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.
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.
The superior court granted Dr. Burns'
motion. Despite a lack of supporting evidence, the
court found Gersten had acted against Dr. Burns' medical
advice and plan of care ...