Judge Shields Doctors Who Recommend Pot
By MARIA LA GANGA, ERIC BAILEY, Times Staff Writers

SAN FRANCISCOSaying the Clinton administration has sent mixed signals
on medical marijuana, a judge blocked the federal government Wednesday from
carrying out threats to punish California doctors who recommend the drug to
patients.

U.S. District Judge Fern Smith issued a preliminary
injunction barring retaliation against physicians who endorse the
therapeutic use of marijuana, which was legalized by last
November's Proposition 215 but remains illegal under federal
law.
The judge said, however, that she would "draw the line at criminal
conduct," such as a physician aiding or conspiring to help a patient
obtain or cultivate marijuana. And though Proposition 215 allows doctors
to recommend pot for any illness they deem to warrant it, Smith limited her
ruling to four specific illnesses, including AIDS and cancer.

Unless overturned by a higher court, the injunction will remain in
effect until the lawsuit is decided at trial, which could be as long as
two years away.
The doctors and patients who filed the classaction lawsuit against
the federal government heralded Smith's ruling, saying it helps to ease
fears that mounted after federal drug czar Barry McCaffrey and other
administration officials threatened a crackdown.
"I feel a heck of a lot better today," said Dr. Virginia
Cafaro, medical director of a large AIDS practice in San Francisco. "I
can go back to practicing medicine without the idea that the government
will be in the room."
Other boosters of medical marijuana called Smith's decision a
repudiation of the Clinton administration's efforts to undercut
Proposition 215.
"Today's ruling is a huge victory for the rights of physicians and
patients, and for the authority of voters to make important policy
decisions," said Dave Fratello, a spokesman for Americans for Medical
Rights, which pushed the November ballot measure.
Clinton Administration officials were scurrying to find holes in
Smith's ruling, but refused to speculate on whether they might appeal.
"This ruling has a lot of ingredients to it," said Bob Weiner, a
spokesman for the president's office of drug policy.
Smith's order applies to doctors who recommend marijuana for
patients with AIDS or the HIV virus, cancer, glaucoma, and seizures or
muscle spasms associated with a debilitating condition.
Although the federal government contends that pot has no proven
therapeutic value, boosters of medical marijuana say it can help relieve
pain, stimulate the appetite and combat the wasting effects of chemotherapy.
The lawsuit was filed after McCaffrey's December announcement that
doctors who recommend pot would face the loss of their authority to
prescribe most medicines, be excluded from Medicare and potentially face
prosecution.
Although there have been only isolated episodes of drug agents
contacting doctors, physicians said the administration policy had a
chilling effect on their ability to talk with patients about the drug.
U.S. officials in February attempted to clarify their position in a
letter to medical leaders stressing that doctors could discuss the use of
pot as medicine with patients, but could not recommend it as outlined in
Proposition 215.
The judge said Wednesday that the government's policy
was unclear and the statements remained "ambiguous and conflicting."
She also said "the government's fear that frank dialogue between
physicians and patients about medical marijuana might foster drug use"
does not justify putting restraints on a doctor's privilege to speak
frankly with a patient.
Under Smith's decision, any effort by physicians to help a patient
get pot could put them in jeopardy.
"What's not protected is helping the patient get the marijuana,"
said Graham Boyd, the San Francisco attorney pressing the lawsuit. "A
physician should not take a telephone call from a marijuana buyers' club
and should not fill out a form from a buyers' club."
That aspect of the ruling drew complaints from some. "It's a totally
deadend game if we can recommend marijuana but people aren't able to
access marijuana," said Dr. Steve O'Brien, of Berkeley's East Bay AIDS
Center.
But the judge's decision did give California doctors unrestricted
freedom to discuss and recommend the drug, Boyd said. Moreover, patients
can request their medical records after a physician recommends pot and
use them to justify obtaining the drug from a buyers' club, advocates said.
Perhaps the most pointed statement Wednesday to the powers of pot
came from Keith Vines, a prosecutor in the San Francisco district
attorney's office.
In 1990, Vines prosecuted what was one of the biggest drug busts in
the city's history. Three years later, he was near death because of AIDS
wasting syndrome.
The recommendation: marijuana. "As a patient, I made the decision to
save my life," said Vines, a plaintiff in the case who still uses
marijuana for medical purposes.
Times staff writer Dave Lesher also contributed to this story.

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