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

395 P.3d 310, 242 Ariz. 301, 763 Ariz. Adv. Rep. 12, 2017 WL 1382020, 2017 Ariz. App. LEXIS 73
CourtCourt of Appeals of Arizona
DecidedApril 18, 2017
DocketNo. 1 CA-CV 16-0635
StatusPublished
Cited by5 cases

This text of 395 P.3d 310 (Gersten v. Sun Pain Management, P.L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gersten v. Sun Pain Management, P.L.L.C., 395 P.3d 310, 242 Ariz. 301, 763 Ariz. Adv. Rep. 12, 2017 WL 1382020, 2017 Ariz. App. LEXIS 73 (Ark. Ct. App. 2017).

Opinion

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 (“AR.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 [303]*303pain 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. Bums 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. Bums 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. Bums 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. Bums’ medical advice and plan of care in using medical marijuana with the prescription medicines.

DISCUSSION

I. The Procedural Posture of this Case

¶6 In dismissing Gersten’s complaint for failure to state a claim, the superior court made, over Gersten’s objection, multiple factual findings based on proposed findings of fact submitted by Dr. Bums. While the court could have treated Dr. Bums’ motion as “presenting matters outside of the pleadings,” and thus, as a motion for summary judgment, see Ariz. R. Civ. P. 12(d), Dr. Bums presented no evidence by way of affidavit, declaration, deposition or otherwise substantiating any of the “facts” listed in the proposed findings of fact he submitted.

¶7 Under these circumstances, the superior court should not have made these findings of fact.3 The only facts properly before it to consider were the well-pleaded factual allegations in Gersten’s complaint. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9, 284 P.3d 863, 867 (2012). Thus, on review, we have disregarded the superior court’s findings of fact, and treat this appeal as one from a dismissal under Rule 12(b)(6). See Hills v. Salt River Project Ass’n, 144 Ariz. 421, 424-25, 698 P.2d 216, 219-20 (App. 1985) (because defendants presented no evidence supporting their summary judgment motions, there was nothing for the plaintiff to controvert and motions were, thus, functionally the same as motions to dismiss for failure to state a claim and, therefore, plaintiff was entitled to rest on well-pleaded allegations of her complaint).

[304]*304II. Section 36-2813(0) Does Not Provide a Private Cause of Action for its Alleged Violation

¶ 8 The Act does not expressly provide a private cause of action to enforce A.R.S. § 36-2813(0). Nevertheless, as he did in the superior court, Gersten argues A.R.S. § 36-2813(0) should be construed as providing an implied private cause of action. Ger-sten’s argument raises an issue of law which we review de novo. State v. Gear, 239 Ariz. 343, 345, ¶ 11, 372 P.3d 287, 289 (2016) (appellate court reviews questions of statutory interpretation de novo) (citation omitted); Coleman, 230 Ariz. at 366, ¶¶ 7-8, 284 P.3d at 867 (appellate court reviews dismissal for failure to state a claim de novo).

¶ 9 When, as here, a statute does not expressly create a cause of action to enforce its terms, that statutory “silence” is not dispositive. Napier v. Bertram, 191 Ariz. 238, 240, ¶ 9, 954 P.2d 1389, 1391 (1998) (legislative silence regarding whether statute creates a private cause of action begins, rather than ends, the inquiry). In interpreting a voter-approved initiative, Arizona courts apply the same interpretive standards that are applicable to statutes passed by the Legislature. Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37, 40, ¶ 11, 270 P.3d 864, 867 (App. 2012).

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Bluebook (online)
395 P.3d 310, 242 Ariz. 301, 763 Ariz. Adv. Rep. 12, 2017 WL 1382020, 2017 Ariz. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gersten-v-sun-pain-management-pllc-arizctapp-2017.