PROSECUTING THE POT DOC

Berkeley Medical Marijuana Specialist Will Lose His License If The Drug
Warriors Get Their Way

The Medical Board of California receives complaints against about
11,000 doctors every year, most of them generated by unhappy patients.
But no patients have yet suggested they were harmed by Dr. Tod
Mikuriya, California's foremost medical-community proponent of medical
marijuana. In the board's current investigation of Mikuriya, all the
accusations against him have been generated by law
enforcement.

Mikuriya, 70, a Berkeley-based psychiatrist and author of widely read
books and papers on therapeutic cannabis, has been accused by the
Medical Board of "extreme departure from the standard of care" in 16
of his 7,500 medical cannabis recommendations permitted under the 1996
Compassionate Use Act (Proposition 215). Mikuriya is one of nine
doctors being investigated by the Medical Board who together have
written more than half the estimated 50,000 medical marijuana
recommendations in California.

In a series of hearings in Oakland last month, prosecutors from the
state Attorney General's Office tried to prove the complaints against
Mikuriya, which include negligence, incompetence, and furnishing
dangerous drugs without prior examination. The doctor charges that he
is the target of malicious prosecution by rogue law enforcement
officers who are seeking to undermine California's medical marijuana
laws.

"Coming here is really quite dishonest because none of the patients
have complained," Mikuriya said during his hearing. "They have all
come from sorehead law enforcement people who could not prosecute and
get me in their jurisdiction, and they have used the Medical Board
apparatus to get back at me."

Medical Board spokesperson Candis Cohen told the Bay Guardian she
could not comment on the motivation of law enforcement in Mikuriya's
case. But she acknowledged that "different views are held by different
agencies regarding the validity of medical marijuana." Cohen said the
board itself takes no position regarding the efficacy of medical cannabis.

But the California Narcotics Officers Association couldn't be clearer
about how its members feel. "Marijuana is not a medicine," the group
says on its Web site, and there is "no justification" for using it as
such.

Cops Play Doctor

In an apparent attempt to assume the role of doctors in determining
just who is sick enough to use medical marijuana, California law
enforcement officers targeted 48 of Mikuriya's patients in eight
counties for arrest and investigation. Records for 45 of these
patients were subpoenaed from Mikuriya, and 16 were examined.

"These persons do not appear to have any serious medical problems,"
Sgt. Steve Mason of the Nevada Sheriff's Department Narcotics Task
Force Office wrote in Mikuriya's investigation report.

"The recommendations were issued not for a medical purpose, but as an
excuse for their otherwise criminal possession, transportation and/or
sale of a Schedule 1 drug," the report summary reads.

Despite these allegations, the deputy attorneys general who prosecuted
Mikuriya's case determined that testimony concerning interaction with
law enforcement was irrelevant. Mikuriya charged in turn that they
were holdovers from former state attorney general Dan Lungren's
administration, which vigorously opposed Prop. 215.

Prosecutors Larry Mercer and Jane Simon argued that the investigations
should focus entirely on medical practice standards, the focus of most
of the Medical Board's 2,000 pending cases. Presiding administrative
law Judge Jonathan Lew largely agreed.

"The defense has attempted to try a case other than the one we
charged," Mercer said. "Regardless of the motivation of the
complainant, a physician will only be disciplined if he or she has
violated the Medical Practice Act.... This case is about if Dr.
Mikuriya provided good medical care."

"If we appeal this ruling to the Superior Court, it will be
overturned," Mikuriya's attorney Susan Lea countered. "We were not
allowed to bring in relevant facts."

What Standards of Care?

The Medical Board released a statement in January 1997 announcing that
since marijuana is classified as a Schedule 1 drug under the federal
Controlled Substances Act, "no objective standard exists for
evaluating the medical rationale for its use." But the statement also
says, "there are certain standards that always apply to a physician's
practice that may be applied."

The prosecution's expert witness, Kaiser HMO psychiatrist Laura
Duskin, does not recommend medical cannabis and declined to interview
Mikuriya's patients. But based on her review of their records, Duskin
alleged that the psychiatrist failed to conduct adequate physical
exams, specify treatment plans, order tests, and adequately document
his cases. "From day one in medical school they teach us 'If you don't
write it down, it didn't happen,' " she testified.

But nine patients who testified on Mikuriya's behalf said the doctor
carefully reviewed their medical histories and dispensed caring advice
during his 15- to 20-minute exams. Many were visibly sick and brought
records from other doctors confirming their illnesses. All were
self-medicating with cannabis when they came to see Mikuriya. They
included a man who said he had exhausted all other medical options for
his disabling nausea. He said Mikuriya was the one doctor who took the
time to thoroughly discuss his illness.

"When you call Kaiser, a nurse takes your info, and they call you
back, and you pick up some medicines," said the patient, who, due to
medical concerns, was identified only by the initials R. B.

Mikuriya contested the charge that he failed to perform adequate
physical exams on patients. While he frequently does not touch
patients or take their vital signs, the psychiatrist said he carefully
observes their physical demeanor, asks them to fill out a research
questionnaire, and relies heavily on their self-reported symptoms.

Edward W. Miller M.D., a retired cardiac and thoracic surgeon and
family practitioner from Marin County, notes that the type of scrutiny
Mikuriya is undergoing is not applied to doctors who cut corners due
to the demands of managed care. "If I go to Kaiser, I'm lucky to have
five minutes with my urologist," Miller told us, adding that he was
surprised to hear that Mikuriya still does house calls. "The care that
he took, that has disappeared from medicine under this grab for the
buck."

Lying Patient

Testimony against Mikuriya by Steve Gossett, an undercover deputy
sheriff, showed that doctors can be lied to. Gossett, who heads Sonoma
County's marijuana investigations unit, traveled to Oakland medical
marijuana clinic Marijuana Referral Services in January and lied about
a shoulder injury, stress, and sleep disorder to secure a cannabis
recommendation from Mikuriya.

Gossett testified that he was coached through his intake form by a
clinic staffer and later offered free samples of cannabis. John Fleer,
an attorney for Mikuriya's malpractice carrier, Norcal Insurance, says
Mikuriya was not aware of these actions, nor legally responsible for
them. The psychiatrist, whose patients have a number of self-reported
conditions such as migraine and back pain, says he assumes patients
are truthful.

Prop. 215 permits doctors to recommend cannabis for any illness for
which marijuana provides relief - a clause Mikuriya wrote into the
bill. But Dr. Philip Denney M.D., a family practitioner from Loomis,
testified during the hearing that the Medical Board was attempting to
enforce a set of standards against Mikuriya that do not yet exist.
Denney, who recommends medical cannabis, argued that Mikuriya is
conducting a "medical cannabis consultation practice," a new model of
care that strictly determines whether patients have a medical
condition for which cannabis might be a useful treatment.

At the California Medical Association convention last March, Mikuriya
offered a proposal for "minimum practice standards" for medical
cannabis providers. Denney criticized the Medical Board for failing to
embrace these guidelines, despite Mikuriya's repeated requests.

Denney added that he was "scared to death" by the possibility of
reprisals from law enforcement for testifying on Mikuriya's behalf.
But he disputed the Medical Board's classification of cannabis as a
"dangerous drug" and determined that Mikuriya had sufficient
documentation to justify his cannabis recommendations.

What's Next?

Cohen said the Medical Board and the CMA are currently "fleshing out"
guidelines on medical cannabis practitioners. But if Judge Lew
suggests the revocation of Mikuriya's medical license, the decision
could have a chilling effect on the willingness of physicians to
recommend cannabis for their patients - the key to upholding Prop.
215.

Fearful of reprisal, only about 15 California doctors are willing to
go public now with their medical cannabis recommendations. But asked
by Lew if he would be willing to modify his practice to conform to a
set standard of care, Mikuriya answered, "Yes! And I have some ideas."

Lew will issue a proposed decision on Mikuriya's case by the end of
the year, which will be voted on by the Medical Board.