WITCH-HUNT VICTIM OR SHODDY DOC?

Dr. Tod Mikuriya believes the state is out to get him for prescribing
medical pot. Critics say it's not that simple.

(Berkeley, CA) Mikuriya has recommended pot more than ten thousand times.

Dr. Tod Mikuriya is a true believer. He views his medical practice as a
platform from which to help reestablish the medicinal status marijuana
enjoyed before the reefer madness of the late 1930s. "It had been available
to clinicians for one hundred years until it was taken off the market in
1938," the wide-eyed Mikuriya said in a recent interview. "I'm fighting to
restore cannabis."

But Mikuriya isn't just burnishing the drug's reputation; he's actively
recommending it to dozens of patients each week, and using it himself. Dr.
Tod, as he is known by his patients, has recommended cannabis more than ten
thousand times since California voters approved Proposition 215 in 1996.
That makes him one of the state's leading advocates of medical marijuana.

Mikuriya claims that because of his prominent role in the medical pot
scene, investigators from the California Medical Board conspired to take
away his medical license. The doctor and his lawyers say that the board's
enforcement action directly contradicted the passage in Proposition 215
that states: "Notwithstanding any other provision of law, no physician in
this state shall be punished, or denied any right or privilege, for having
recommended marijuana to a patient for medical purposes."

But the state attorneys who prosecuted Mikuriya counter that the case
against Dr. Tod did not really concern marijuana, but whether he had
applied the appropriate standards of patient care.

The key question in the case boils down to how rigorous an examination
doctors must perform when recommending marijuana to a patient. State
investigators have said they began investigating Mikuriya because they
thought he was recommending pot with little more than drive-by
consultations. And once their investigation was done, they said they had a
stash of proof that Dr. Tod had repeatedly failed to thoroughly examine
patients before advising them to toke up.

The 71-year-old Berkeley resident has long been an outspoken proponent of
medipot. In 1967, he was a consulting psychiatrist in charge of marijuana
research at the National Institute of Mental Health Center for Narcotics
and Drug Abuse Studies. He has written numerous articles on the effects of
cannabis, worked with San Francisco medical pot guru Dennis Peron, and
founded the California Cannabis Research Medical Group. "It never ceases to
amaze me the broad range of ailments that are helped by cannabis -- chronic
conditions, physical or psychological," he said.

All this advocacy has given Mikuriya a certain notoriety. In late 1996, he
was singled out by federal drug czar Barry McCaffrey during a national TV
appearance announcing that doctors risked losing their federal licenses to
prescribe drugs if they recommended marijuana following passage of Prop.
215. The doctor believes that sometime after that warning, state law
enforcement officials who sided with McCaffrey actively commenced a witch
hunt against him. What better way for opponents to eviscerate California's
groundbreaking medical marijuana law, he asked, than to make life miserable
for the small handful of doctors who most often suggest pot to their
patients? Mikuriya refers to some of these antagonists as "the forces of
darkness."

Records show that state investigators began focusing on Mikuriya sometime
in the late 1990s. They suspected that he had recommended pot a little too
casually in the case of a 58-year-old Napa County quadriplegic with
advanced multiple sclerosis. Mikuriya later testified that the bedridden
patient whom he saw for five minutes in November 1998 was already using pot
and that his conservator said he was benefiting from it.

To build a case against Mikuriya, medical board investigators began working
with law enforcement officials from around the state. Cops and prosecutors
from rural counties appeared most eager to help, producing the names of
about fifty people who had been arrested or investigated for marijuana use
and had obtained pot after receiving a recommendation from Mikuriya. Just
two came from the Bay Area -- both from Napa County. By contrast, nine came
from El Dorado County, ten from Tehama County, and eleven from Nevada County.

Medical board investigators wrote to each of the patients, asking them to
release their private medical records. The vast majority did not respond.
Working in concert with the California Attorney General's Office,
investigators then subpoenaed Mikuriya to release the records of 47
patients. Mikuriya and his lawyers fought the subpoenas in court, but
ultimately accepted a deal in which they released the records under the
threat of medical license suspension, according to court documents.

Investigators combed through the 47 patient records and identified sixteen
cases in which they believed Mikuriya had inadequately examined his
patients. The medical board and attorney general then added one final case:
that of a Sonoma County Narcotics Task Force agent who said that Mikuriya
recommended pot to him during an undercover operation.

Prosecutors and investigators then brought in a San Francisco psychologist
to study the seventeen cases as an expert witness. In making her
determinations, Laura Duskin relied on a 1997 "policy statement" from the
medical board that said California doctors who recommend marijuana should
use the same patient-examination standards as doctors who prescribe any
drug or procedure. Use of the strict state standard doomed Mikuriya. Duskin
found him grossly negligent in all seventeen cases.

The doctor's attorneys later argued that he should not be held to the terms
of the policy statement because it was not an official regulation. Mikuriya
also noted that he considers himself a consultant, not a primary physician.
His attorney, Susan Lea, argued that more-thorough examinations would force
Mikuriya to raise his fees for patients who cannot afford it.

Lea noted that none of Mikuriya's patients complained or claimed they had
been harmed by his advice, and that Duskin did not interview any of them.
She further observed that Duskin had never once recommended pot to a
medical patient. "Obviously, we're not dealing with people who respect
Prop. 215," Lea said.

The two deputy attorneys general who prosecuted Mikuriya, Lawrence Mercer
and Jane Zack Simon, did not return phone calls seeking comment for this
story. But in court documents and previous statements to reporters, they
contended that there was no conspiracy against Mikuriya.

The administrative law judge who oversaw the case bought the state's
argument that the real issue was whether Mikuriya applied the appropriate
standards of care. In his April 19 decision, Judge Jonathan Lew was
unconvinced by testimony from Dr. Philip Denney, an expert witness for
Mikuriya, that Dr. Tod's exams were sufficient under Prop. 215. In fact,
Lew used Denney's testimony against Mikuriya, noting that Denney said he
conducted thorough examinations of his own patients whenever he recommended
marijuana to them.

Lew revoked Mikuriya's medical license, but stayed the order and put him on
five years' probation. During this time, Mikuriya will be monitored by
another doctor, who will periodically review his patient records. Lew also
fined Mikuriya $75,000 to help pay for the medical board's investigation
and prosecution. Board spokeswoman Candis Cohen said its current executive
director, Dave Thornton, was "very satisfied" with the outcome of the case.

Shortly after Lew's ruling, Mikuriya opened a small new medical office
above the El Cerrito Trader Joe's. Medical marijuana consultations remain
his primary practice. He said he sees about forty patients a week, and
intends to follow the state medical board's policy statement regarding the
standards appropriate for recommending medical marijuana. Mikuriya also
acknowledged using his chosen medicine himself, saying another doctor
recommended it to him to help treat his mild depression.

Mikuriya is appealing Lew's decision on several grounds. One challenges the
legality of the patient subpoenas. In a case involving another medical
marijuana practitioner, Dr. David Bearman, the Second District Court of
Appeals in Los Angeles shot down a request by the medical board and the
state attorney general's office to subpoena patient medical records. The
court said established precedent does not allow the board to "delve into an
area of reasonably expected privacy simply because it wants assurance the
law is not violated or a doctor is not negligent in treatment of his or her
patient." Mercer and Simon of the attorney general's office argued that it
is too late for Mikuriya to challenge the subpoenas.

At the same time, Mikuriya's defense team also is arguing that Lew
neglected to reveal what they allege is a possible bias. Lew sits on the
advisory board of a Christian group, Powerhouse Ministries, that equates
marijuana addiction with slavery on its Web site. "The challenge is not
about the judge's actual bias, but his failure to disclose a highly
relevant fact that would have allowed petitioner to probe the possibility
of that bias," Mikuriya's lawyers wrote in his appeal in Sacramento County
Superior Court. Prosecutors Mercer and Simon called the suggestion that
Lew's involvement in Powerhouse Ministries constitutes an appearance of
bias "absurd and offensive."

Meanwhile, the medical board acknowledged the ongoing confusion surrounding
proper standards of care by promulgating another advisory statement after
Lew issued his decision. The new statement essentially repeats the 1997
statement. But like the earlier advisory, the new policy is not an official
regulation.