MIKURIYA'S MOTION DENIED

Administrative Law Judge Jonathan Lew has rejected a motion to dismiss the
state Medical Board's case against Tod Mikuriya. The Berkeley psychiatrist,
who has approved cannabis use by some 7,500 patients in recent years, will
have to defend his handling of 17 cases at a hearing that's scheduled to
start Sept. 3 in Oakland. According to Mikuriya, all the patients involved
have benefited from cannabis use, and none have reported adverse effects.

In case you've just joined us, the Medical Board of California is the state
agency that issues licenses to physicians -and can revoke or suspend them.
Mikuriya, who will turn 70 next month, not only approves cannabis use by
patients, he has devoted his whole career to studying its applications. In
1995-96 he was medical advisor to the organizers of the Prop 215 campaign.
When it passed into law and Drug Czar Barry McCaffrey warned California
doctors not to recommend marijuana, he specifically ridiculed Mikuriya's
claims as to its versatility and usefulness in a wide range of conditions.

Following a lengthy investigation in which the Board subpoenaed files that
the patients involved did not want to provide, Mikuriya was accused of
"unprofessional conduct" and "gross negligence" based on his allegedly
inadequate records, superficial examinations, lack of follow-up, etc.
Mikuriya's lawyers filed a motion to dismiss the accusation, relying
heavily on the argument that Prop 215 conferred "absolute immunity" on
doctors who recommend marijuana. They cited the law created by 215, which
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."

Judge Lew, in a ruling issued Aug. 4, distinguished between a
recommendation to use marijuana and the process by which the doctor decides
to issue the recommendation. A doctor can't be punished for making the
recommendation, according to Lew, but can be punished for failing to take
certain steps in arriving at the decision.

"The immunity afforded physicians under Health and Safety Code section
11362.5 appears to be conditional," wrote Lew. "It is presumed that
physicians who recommend marijuana under the Act will follow accepted
medical practice standards and make good faith recommendations based on
honest medical judgments. Complainant [The Attorney General, on behalf of
the Medical Board] correctly notes that to hold otherwise and to extend
absolute immunity to physicians would allow them to simply issue
recommendations without the exercise of sound medical judgment and with no
oversight."

The "absolute immunity" argument has always seemed problematic to your
correspondent. Let's say a 37-year-old man in generally good physical
health who had been using cannabis for chronic anxiety tells the doctor
from whom he hopes to get a letter of approval that he's had a painful
stomach ache for the past eight hours. Isn't the doctor obligated to advise
him -after ruling out food poisoning and other possible causes- that
there's a chance it could be acute appendicitis? The doctor should also
suggest a treatment plan, i.e., if the pain doesn't abate by a certain
time, he should visit his regular doctor or an emergency room? A doctor
with absolute immunity could fail to take these steps and yet would bear no
responsibility if the patient winds up near death, poisoned by a burst
appendix. Common sense tells us that wouldn't be right.

Lew's decision re "absolute immunity" came as bad news to Mikuriya
- -there'll be more precious days spent in the courtroom, tremendous expense,
the constant looming fear of forced retirement if he loses. But it sets the
stage for a courtroom fight in which evidence as to the safety and efficacy
of cannabis can be introduced. As Lew himself put it, "The applicable
standard of practice in this case will be established by expert testimony."
If that testimony is science-based, Mikuriya gets exonerated.

The Additional Complaint

At a July 11 settlement conference, Mikuriya was told that if he did not
accept the AG's offer on behalf of the Board -multiple insults including
seven years probation, remedial training, another doctor monitoring his
practice, and fines in excess of $30,000- they would add a charge stemming
from his treatment of an undercover officer in January of this year.
Mikuriya declined the deal and the Attorney General's office kept its word.
As Mikuriya tells it, "A man I now know to be Detective Steve Gossett of
the Sonoma County Task Force infiltrated a clinic in Oakland [organized by
a third party]. He presented fraudulent I.D. as 'Scott Burris' and made
deceptive statements on his intake form and to me about recurrent shoulder
pain, which he said was relieved by cannabis. I recommended physical
therapy and advised him to vaporize instead of smoking."
Mikuriya hopes that the upcoming hearing will give his lawyers an
opportunity to find out who sicced Detective Gossett on him, and why. "I
have been targeted by a coven of criminals acting under color of
authority," says Mikuriya. "I want to figure out their organizational chart."

Board Stiffed by Staff

At its Aug. 1 meeting, the Medical Board was supposed to hear a report from
the head of its Enforcement Division confirming or denying a serious charge
leveled by pro-cannabis physicians who had been investigated by the Board.
The docs -three of whom were in attendance- had charged that ALL the
complaints subjecting them to costly, frightening, demeaning,
time-consuming investigations had come from law enforcement, and that none
of the complaints even alleged that they had caused harm to a patient.

At the previous meeting of the MBC, held in Sacramento in May, Chief
Investigator Dave Thornton had reassured the Board that complaints against
the pro-cannabis docs had NOT come exclusively from law enforcement. (The
only exception Thornton said he could recall was "a complaint from a
parent.") Thornton was directed to review the relevant files and report
back. Only nine or 10 doctors had been investigated in connection with
marijuana recommendations, according to Thornton, so it was a finite task.

Thornton didn't remind the Board in May that he would be retired by August.
So it was the new Chief, Joan Jerzak, who testified Aug. 1 that the report
promised by her predecessor was not available. Steve Alexander, a non-MD
member of the Board, tried to impress the significance of the report on
Jerzak. She promised to have it by the November meeting.

Go Figure

Two recent decisions by the Board highlight the inconsistency of their
charging policy.

At the end of May, Mike Alcalay, MD, got a one-sentence notice that he
would not be charged. The Board had investigated his treatment of an
eight-year-old boy whose uncontrollable, violent behavior was about to
result in his removal to a residential treatment center. Alcalay wrote a
recommendation for cannabis based on a review of the boy's medical records
plus many hours of phone contact with the mother -but no face-to-face
interview with the boy.

On July 25 Frank Lucido, MD, learned that the Board's case against him was
being forwarded to the Attorney General for possible prosecution. Lucido's
patient was a 16-year-old (almost 17) whose "hyperactivity disorder" had
been treated unsuccessfully with Ritalin, Prozac, Lithium and other
pharmaceuticals, which either didn't work or caused unacceptable side
effects. Lucido, after a face-to-face examination, recommended cannabis,
which enabled the young man to attend school, get excellent grades, and to
hold down a part-time job.