Judge sets case of Nevada County holistic physician for trial | TheUnion.com

Judge sets case of Nevada County holistic physician for trial

A Nevada County judge on Tuesday denied a defense motion to suppress evidence in the case of holistic physician Harvey Bigelsen, setting the matter up for a three-day jury trial starting Jan. 27.

"Given the pervasive regulation of the medical industry, the presumption of knowledge and defendant's particular familiarity with the medical practice, there can be no legitimate claim that defendant was unaware that his industry is one heavily regulated and subject to warrantless administrative searches," said the opinion issued by Superior Court Judge Candace Heidelberger.

She was referring to a March 20 raid on Bigelsen's Biological Health Institute in Nevada City, shutting the clinic down and confiscating two high-powered microscopes that Bigelsen had used to examine live blood cells.

Bigelsen's attorney, Mark Geragos, had argued that the state investigators lacked a search warrant in the raid and lacked authority for a March 4 undercover sting operation where a state investigator wearing a hidden video camera posed as a patient at Bigelsen's clinic.

Geragos said he was prepared to take the case to trial. Bigelsen is facing charges of nine misdemeanor counts of practicing medicine without a license and related offenses. He has maintained he was not practicing medicine in that he acted as a consultant to examine blood samples.

"I feel strongly about this," said Geragos, a Southern California celebrity lawyer who acknowledged he was "certainly not charging what I normally charge" to take the case. "It's obvious from all the community support that this is a case of government run amok."

He said he will file a motion in time for a Jan. 16 trial readiness hearing to request the return of Bigelsen's two microscopes.

Surrounded by about 60 supporters after the hearing Tuesday morning at Nevada County Courthouse in Nevada City and wearing his Vietnam veteran's cap, Bigelsen said he was stunned and dismayed.

"I served my country; I saved 200 lives," said Bigelsen, 74, a trauma surgeon during the Vietnam War. "This is stupid."

Community members were outraged.

"This is a modern-day witch hunt," said Nevada City activist Reinette Senum.

"I'm seeing criminals who are running meth labs and killing people still out in the streets," she said. "And here's one person who's actually healing people, and they're taking him down."

However, Nevada County District Attorney Cliff Newell said Heidelberger's decision reflected case law in terms of whether the March 20 raid and the March 4 undercover sting were legal.

"The judge followed the law," Newell said. "Given that she took the case under submission means she did her research."

Heidelberger, in her ruling, said the March 4 undercover sting "did not constitute a search under the 4th Amendment," citing an earlier case of Maryland v. Macon . "The Supreme Court has held that no search takes place and the 4th Amendment is not implicated, when an undercover agent merely accepts an offer to do business made to the public."

She said the authority to record the conversation was granted by Assistant District Attorney Anna Ferguson.

As to the March 20 raid, Heidelberger said it was a "warrantless search … (that) fell within the administrative search exception."

She also cited an earlier case, New York v. Burger , that held that "the potential for discovery of criminal activity during such an administrative search does not invalidate an otherwise lawful search."

If convicted at trial, Bigelsen could face a maximum misdemeanor sentence of six months in jail and a fine. However, Newell said he did not think jail time was a likely outcome.

"My office is not looking to lock Mr. Bigelsen up," Newell said. "We're simply holding him accountable."

He said his office had earlier offered a plea deal, but it was declined. Nevada County Deputy District Attorney Ray DeJesus is assigned to the case.

"We are offering a resolution to the case," Newell said. "It's up to them to decide whether to take it."

He declined to reveal any details of the proposed resolution, which he said was "between attorneys."

At Tuesday's hearing, Geragos told Heidelberger there were no active talks in progress on a plea deal.

"We're going to trial," he said.

Bigelsen's son Adam Bigelsen, a Truckee-based college professor and music teacher, said his father was a victim of injustice.

"He doesn't deserve this; he hasn't earned this," Adam Bigelsen said.

"It's a horrible thing to have to go through," he said. "To believe in things like justice and to not see justice served."

Adam Bigelsen said his father, one of an estimated three physicians in the country to employ the live blood cell technique called hemobiographic analysis, is sought after by practitioners globally.

"The rest of the world wants this knowledge," he said. "People come here from places like Croatia, Tasmania and Trinidad to study with him."

Rudi Leonardi of Mill Valley said he drove three hours to attend Tuesday's hearing, which lasted about 15 minutes.

"We have to preserve our choices," Leonardi said. "Alternative practitioners have to be able to protect their business models and not be threatened."

Leonardi said he wants to maintain the culture's "organic right to choice to select the people we want to be our practitioners," adding, "It's a fundamental right of who we are as a country."

Reno-based osteopathic physician David Holt, a homeopath, said he traveled to Nevada City for Tuesday's hearing to support Bigelsen.

He noted that Bigelsen, while practicing as a physician in Arizona, authored the country's first homeopathic medical doctor licensing law, which requires that a homeopathic physician first be an M.D. or an osteopath.

"He founded the homeopathic medical doctor degree in the U.S.," Holt said. "He's the reason I practice the way I do."

(NOTE: Senum is a member of The Union's Editorial Board).

To contact Staff Writer Keri Brenner, email kbrenner@theunion.com or call 530-477-4239.

Complainant identified in Bigelsen case

A North San Juan dentist filed the initial complaint that led to the arrest of holistic physician Harvey Bigelsen and the closure of his Nevada City clinic March 20, court records indicate.

Robert Dickter filed the complaint on Jan. 20, 2012, according to an investigation report prepared by the Medical Board of California and submitted to Nevada County Assistant District Attorney Anna Ferguson. Dickter, the subject over the weekend of a thread of 44 critical posts on the private Facebook group The San Juan Ridge Community Forum, could not be reached for comment.

"He never was a patient of mine," Bigelsen said Monday morning at Nevada County Superior Court. Bigelsen said the only contact he has had with Dickter was over the phone some time ago when the dentist called him to rant about a radio show where Bigelsen spoke on the potential relationship between Lyme disease and dentistry.

"He was enraged," Bigelsen said. The website for the California Dental Board lists Dickter as having a current license, with no disciplinary actions. Dental board staff could not be reached for comment on Monday.

About 25 Bigelsen supporters attended Monday's brief hearing, the latest in the series of pretrial hearings since the March 20 raid where Bigelsen was arrested on nine counts of suspicion of practicing medicine without a license and related charges.

Bigelsen, who maintains that he was operating as a consultant performing blood sample analyses and not practicing medicine, has pleaded not guilty, as has his son Josh Bigelsen, who was also arrested on similar but lesser charges.

"I've not had one patient complaint in 30 years," Bigelsen said. "There's just this one angry dentist whom I've never seen."

At Monday's hearing, attorney Elliott Faust of Auburn, substituting for attorney Mark Geragos, filed a motion to suppress evidence and a proposed order to return Bigelsen's microscopes confiscated during the March 20 raid. Superior Court Judge Linda Sloven set a 9 a.m. Nov. 13 hearing date for the motion to suppress. According to a copy of the motion, Geragos is seeking to suppress "any and all items seized from the defendant by California Medical Board investigators and/or the California Department of Public Health's Food and Drug Branch." That includes such items as "video surveillance footage, witness and patient interviews" and other information and observations from the investigators.

"They shut me down without a hearing," Bigelsen said. "They won't give me my microscopes back."

Josh Bigelsen said there was never a "cease and desist" warning or any type of warrant before the raid.

"They said I was resisting," Harvey Bigelsen said. "They had seven uniformed deputies who pushed me out of the way — how much resistance do you think a 73-year-old man like me would give to that?"

Bigelsen's case has become somewhat of a cause celebre for holistic medicine supporters, patients and practitioners — as well as a whipping boy for critics who lob allegations of quackery and "snake oil salesmen." The Union columnist George Boardman, who on Monday fell into the latter category, said many people choose to reject modern medicine and then fall "for voodoo medicine that didn't work a millennium ago and still doesn't work."

On the other hand, Ken Lehman of Nevada City, a body worker who does cranial-sacral therapy, said Bigelsen saved his life seven years ago when he "literally crawled into his office" after visiting numerous medical doctors, with no success.

"I was really, really ill," Lehman said. "No one could figure out what was wrong with me."

According to Lehman, "Dr. Bigelsen took one drop of my blood, looked at it under the microscope, and in three minutes, said 'You've been poisoned.'"

As it turned out, Lehman had been cleaning out an old basement in Tahoe and had likely inhaled rat poison.

"I got treatment and he fixed me, right as rain," said Lehman, who said he has been healthy ever since.

According to court documents, Dickter's complaint came after he visited Bigelsen's office on Jan. 6, 2012.

"(He) was given a 'Client Consent Form' which explained that Harvey Bigelsen is unlicensed but all medical treatments at the clinic are supervised by Dr. Joseph Watson, a licensed Osteopathic Physician," the documents state.

"On 03-14-12, (investigator) Wright checked the online licensing record for the Medical Board of California, the Osteopathic Medical Board of California and the Bureau of Naturopathic Medicine and found no record of a license issued to neither Harvey nor Joshua Bigelsen," the report adds.

Bigelsen, who was previously licensed in Arizona, where he authored the first homeopathic medical practice law in that state, has stated that he chose not to seek a license in California and instead act as a consultant. As detailed previously in The Union, Bigelsen surrendered his Arizona license after allegations of Medicare fraud, which were settled for a record low $145 fine. The allegations were based on 28 cases of chelation therapists who were affiliated with Bigelsen's then-clinic and which the Medicare investigators at the time alleged were chosen at random, Bigelsen said.

"I always wanted my work to be known, but not for its persecution," said Bigelsen, who has authored several books on what he calls the "anti-medicine" approach to healing. "I'm the lead guy — I've always been at the forefront of the holistic movement."

Meanwhile, Markus Keicher of North San Juan, a former patient of Dickter's, said he started the Facebook thread when he heard through word of mouth that Dickter was the complainant against Bigelsen.

He said he had a negative experience with the North San Juan dentist about a year ago. He did not file a complaint at the time, he said.

Now, however, given the Bigelsen case revelation, he said he felt it was time to take a public stand about it.

"Dr. Bigelsen was a true healer, and he's out of business because of this dentist," Keicher said. "It's the saddest story I've ever heard."

On Monday, Judge Sloven set a pretrial hearing for Joshua Bigelsen, who is represented by Faust, for Dec. 1. Nevada County Deputy District Attorney Ray DeJesus is representing the county in both Bigelsen cases.

To contact Staff Writer Keri Brenner, email kbrenner@theunion.com or call 530-477-4239.

Geragos to represent Nevada County holistic physician

Celebrity attorney Mark Geragos, who represented Michael Jackson, Chris Brown, Wynona Ryder and other high-profile national figures and who has been part of numerous landmark legal cases, has agreed to represent Nevada County holistic physician Harvey Bigelsen in a criminal case filed against him on allegations of practicing medicine without a license and related charges.

"To me, this is bigger than me, and that's why I wanted a celebrity lawyer," Bigelsen said Monday at his arraignment on the charges in Nevada County Superior Court. "There's a persecution going on of alternative medicine."

He said he didn't know Geragos before contacting him, but the attorney, principal of Los Angeles-based Geragos & Geragos, told Bigelsen he was "fascinated" by the case.

"We took the case because we felt strongly that Bigelsen is being persecuted for not hewing to the medical establishment," Geragos said in an email.

Geragos' associate Setara Qassim, who filled in for Geragos in court on Monday, voiced similar sentiments.

"He is innocent; he hasn't done anything wrong," she said. "There are no victims in this case."

Bigelsen on Monday pleaded not guilty to the charges, filed by Nevada County Deputy District Attorney Ray DeJesus. His son, Josh Bigelsen, also filed a not guilty plea to similar allegations via his attorney, Elliott Faust of Auburn.

Nevada County Superior Court Judge Linda Sloven accepted the pleas and set a pretrial hearing date of 9 a.m. Sept. 15 for both Harvey and Josh Bigelsen. Geragos, who was also famous for representing convicted murderer Scott Peterson and acquitted Whitewater figure Susan McDougal, is expected to be present for the hearing, Bigelsen said.

Bigelsen, whose Biological Health Institute clinic in Nevada City was raided and shut down March 20 by investigators for the California Medical Board, maintains he was acting only as a consultant to licensed physicians at the clinic, doing blood sample analyses.

He had no patient contact, he said.

Former Nevada City Councilwoman Reinette Senum said she attended Monday's arraignment to continue her support of Bigelsen and his family.

"This goes beyond the personal case of Harvey and Josh Bigelsen," said Senum, who helped organize a June 22 fundraiser for the Bigelsens at Summer Thymes restaurant in Grass Valley.

"This is about the fundamental right to have health freedoms.

"If we don't have our health, we have nothing," Senum added.

Senum and others have been actively supporting Bigelsen on a Facebook page, "I Stand Behind Dr. B."

In addition, the National Health Federation, a health-freedom-focused organization, of which Bigelsen serves as a board member, has mounted a fundraising campaign to support Bigelsen's legal costs, said Katherine A. Carroll, associate editor of the federation's "Health Freedom News."

Carroll said federation president and general counsel Scott C. Tips is leading the fundraising efforts.

To contact Staff Writer Keri Brenner, email kbrenner@theunion.com or call 530-477-4239.

Bigelsen case postponed until July 21

A Nevada County Superior Court judge agreed Monday to postpone court appearances for Nevada City holistic physician Harvey Bigelsen and his son, Josh Bigelsen, for three weeks.

Judge Linda Sloven granted a request from Auburn attorney Elliott Faust to continue the case until 9 a.m. July 21.

Faust, who is representing Josh Bigelsen, also spoke on behalf of Harvey Bigelsen, who has hired his own private attorney.

Harvey Bigelsen, who is charged with nine counts of practicing medicine without a license and related offenses, is expected to enter a plea at that time and his new attorney is expected to be present.

Josh Bigelsen, who is charged with two counts of similar offenses, is also expected to enter a plea.

Monday's court hearing before Sloven was supposed to be an arraignment on the charges filed June 6 by Nevada County Deputy District Attorney Ray DeJesus. The charges were filed after investigators for the California Medical Board on March 20 raided the Bigelsens' Biological Health Institute and confiscated two high-powered microscopes, effectively shutting down the operation.

Since then, some community members have rallied to support the Bigelsens, posting testimonials on Facebook. About 200 people attended a fundraiser on June 22 at Summer Thyme's restaurant in Grass Valley.

Bigelsen, who said he works as a consultant to examine and analyze live, unstained blood under a microscope, has been a controversial figure in challenging the medical establishment for much of his career.

To contact Staff Writer Keri Brenner, email kbrenner@theunion.com or call 530-477-4239.