IS THE MEDICAL BOARD ON A CRUSADE?

Three physicians and about a dozen cannabis-using patients attended the May
8 meeting of the state Medical Board's Enforcement Committee to decry
investigations of doctors who have made a subspeciality of monitoring
cannabis use. The Board's chief Investigator, David Thornton, sought to
reassure the Committee (and the concerned citizens) that his agents were
not out to persecute doctors who approve marijuana use.

Thronton described one "egregious example" of a physician whose "medical
office contained a computer, a printer and a cash register.

There were no other instruments in that office.

There was very little the physician was doing medically in that office to
determine whether there had been an indication for a prescription. You
walked in, you paid your money, your name was put in the computer, and a
letter was generated."

Thornton testified that The Board has conducted only nine marijuana-related
investigations since the passage of Prop 215. "Nine investigations in six
and a half years is not a lot of investigations," he said. He supervises
about 100 investigators working out of 12 offices statewide.

They are currently looking into about 1,500 cases; another 400-500 have
been forwarded to the Attorney General for possible prosecution.

From the perspective of cannabis-using patients, however, the pattern
seems ominous because eight of the nine investigated physicians are
responsible for approximately half the 50,000 approvals issued to date in
California. Most doctors are unwilling to approve the use of cannabis in
treating conditions that are not life-threatening. Therefore, patients who
use it to treat migraines, chronic pain, depression, etc., have obtained
their approvals from the small group of doctors who have made a
subspecialty of monitoring cannabis use. (Several thousand California
physicians have approved marijuana use, according to cannabis-club intake
records, but a large majority have done so for only a few of their patients.)

Of the nine doctors who have been investigated by the Board in connection
with marijuana approvals, eight fall into the "subspecialist" category:
Stephen Banister, Tod Mikuriya, William Eidelman, Marian Fry, Frank Lucido,
David Bearman, Mike Alcalay, and R. Stephen Ellis. The ninth is a doctor
named Robert Newport who prescribed a drug for a family member on which the
family member overdosed.

Since Newport had also approved the family member's use of marijuana,
Thornton lists the case as marijuana-related.

Banister, a family practitioner from Nevada City, was one of the first
cannabis subspecialists to be investigated by the Board. The initial
complaint against him came from a probation officer resentful that a client
of his named Wesly Stockdale had a letter from Banister entitling him to
use marijuana.

When the Board asked to review his records, Stockdale wrote: "Not only do I
find this to be a gross invasion of my privacy (wherein I also object to
the subpoenaing of my records in any and every way possible) but I believe
Dr. Banister to be a man of high integrity, competence, decency and
compassion and I believe that the review of my chosen physician to be a
highly inappropriate and misguided action." Banister eventually agreed to a
three-year probation that enabled him to continue practicing and even to
approve his patients' use of cannabis (but he had to pay a fine, attend
classes at UC San Diego, and be monitored by another physician for three
years. Banister, like Newport, is officially on probation.

The Mikuriya and Eidelman cases are officially pending with the AG.
Eidelman, whose practice was in the Los Angeles area, received an interim
suspension order last May; he can't practice until the case gets settled or
heard by an administrative law judge. "To say his records were inadequate
would be an understatement," says Thornton. It can be inferred that
Eidelman is Thornton's "egregious example."

Mikuriya is due to have a hearing in Oakland in September; an
administrative law judge will review 17 patients' files (obtained by
subpoena over the objections of doctor and patients) to determine whether a
proper "standard of care" had been met. In not one of the cases did the
complaint against Mikuriya come from a patient or a caregiver or another
healthcare worker (they were all instigated by law enforcement agents. Nor
did any of the complaints allege harm to a patient! (See AVA 4/30)

David Bearman of San Diego has been under investigation since September
'01. Possession of a letter of approval from Bearman had enabled Patient X
to foil a state park ranger's attempt to confiscate his marijuana.

The ranger filed a complaint with the Board. questioning the standard of
care provided by Dr. Bearman! The Board then asked Bearman to forward
Patient X's records.

Bearman refused, citing doctor-patient confidentiality. The Board
subpoenaed Patient X's file. Bearman refused to provide it. The Board
recently threatened him with a $1,000/day fine until he complies.

Bearman, who says he takes at least an hour to conduct an initial exam, is
confident that the Board would call off the investigation immediately upon
seeing his documentation of Patient X's condition. But you know how it is,
some guys just never get over their 9th grade civics classes.

Three other cases are officially under investigation. The case against
Frank Lucido involves a teenager whose "hyperactivity disorder" had been
treated unsuccessfully with several pharmaceuticals, including Ritalin,
Prozac, and Lithium, which either didn't work or caused unacceptable side
effects. Cannabis enabled the kid to attend school (and get excellent
grades) as well as work part-time; but a possession charge led to trouble
with school administrators and law enforcement.

Alcalay's case involves an eight-year-old boy whose uncontrollable,
frequently violent behavior was about to result in his removal to a
residential treatment center.

A cannabis extract (the 20th medication the boy had been treated with(
worked so well that he was able to attend public school and make friends!

The problem is, Alcalay wrote his initial recommendation based on a review
of the records plus many hours of phone contact with the mother,
supplemented by a trusted assistant's interviews with her (but no
face-to-face interview with the boy.

The case against Marian Fry seems analogous to the one against Mikuriya.
"Every patient I've been asked about by the medical board has passed
through the criminal justice system in either El Dorado or Sacramento
County," she says, "and the complaints all came from district attorneys,
not the patients themselves."

The Board's investigation into R. Stephen Ellis, MD (a San Francisco
physician who advertises his willingness to write medical marijuana
recommendations in several newspapers( ended with a terse note last
September: "The Medical Board of California is closing the inquiry into the
care and treatment you are providing at this time, based upon the written
assurances of your counsel that you have come into compliance."

Ellis says, "They'd had no complaints. My ads caught their attention."

Medical Board meetings are generally held in featureless, fluorescent
conference rooms at hotels near airports. The May 8 session was at the
Doubletree in Sacramento. Enforcement Committee chair Ronald Wender, MD,
gave the members of the public two-to-three minutes each to express their
concerns. Excerpted here are some of their heartfelt comments:

Phil Denney, MD (who has written almost 8,000 cannabis approvals to date (
more than any doctor in the state( and has not been investigated by the
Board): "I'm a 1976 graduate of the University of Southern California. I've
practiced medicine in California successfully for 27 years.

The recommendation of cannabis in California is lawful.

Even with a cursory review of the literature, cannabis by all tests is a
safe, non-toxic drug. We are not talking about a drug that is dangerous.

The government has lied to us about the use of cannabis and its dangers for
the last 32 years. Again, a cursory review of the literature will bear that
out. Seventeen hundred patients die in this country every year from taking
NSAIDS. There has never been a death associated with cannabis.

Given this information, the conduct of the MBC that leads to sanctions of
MDs is purely political, and that's wrong.

When you mention that nine investigations is a small number, you must
consider the effect of those investigations on the rest of the physicians
in California. The sanction of even one physician will have a dramatic
impact on the practices of all others."

Dale Schafer (with wife Marian "Mollie" Fry in attendance): "I'm an
attorney and I represent between seven and eight thousand patients. I met
with Mr. Thronton in 2000 and provided him with the protocols of the office
that we were running (how patients were evaluated, the documentation that
we kept. We were informed that if there was a good-faith prior exam and
medical indication, that physicians would be left alone.

We have found out through the Freedom of Information Act that the
law-enforcement tail is wagging the Medical Board dog. As soon as this law
passed in 1996 our Attorney General [Dan Lungren] met with Barry McCaffrey
in Washington and put together a strategy to scare the bejesus out of any
doctor who dared to do this. We have a federal restraining order in place
now, the Conant v. Walters decision, that permanently enjoins the federal
government from going after DEA registration. It's closing the barn door
after the horse is gone. As soon as you threaten a physician's DEA
registration or their medical practice, they don't want to touch this. What
would the Medical Board do if a police officer called to complain that
somebody with a bottle of Vicodin didn't have enough pain to qualify for a
Vicodin prescription? Would they investigate? That's exactly what law
enforcement is doing (they're playing doctor.

If they don't think you're sick enough, or they're angry that you weren't
prosecuted successfully, they forward a complaint to the Medical Board. I
think that's the genesis of every one of these investigations so far. We do
not have any reasonable protocols for doctors to use if a person comes in
and says I've got x, y, or z disease, I want to use marijuana.

These investigations have sent a chilling effect out (just like when Barry
McCaffrey pointed to Tod Mikuriya and said, 'How dare you put depression on
this list? Or post-traumatic stress disorder?'

"My wife has breast cancer. Her oncologist left the room when we asked if
she could smoke pot! He would give her a prescription for Marinol, and
that's what kept us from being prosecuted, but he wouldn't say you can use
marijuana. And if you find a doctor who says "Go ahead and smoke
marijuana,' they don't know what to tell you next. What do you do? How
much? Two point five milligrams is supposed to the beginning of a
therapeutic dose. Doctors need to be taught about the cannabinoids! About
vaporization! About the old tinctures that doctors used to use, that you'd
drop under your tongue. Doctors are afraid.

They're looking to the Medical Board for assistance and all they run into
is law enforcement (the tail wagging the dog. We need a moratorium on these
investigations until protocols are developed and doctors are educated in
what the protocols are. And then, hold them to task if they violate these
protocols.

Ryan Landers: "I've had full-blown AIDS for seven years.

The only way I can take my HIV cocktail and not throw up or control the
cramping pain and the lack of eating pain (there's so many different kinds
of pain you get, combined, plus the complete lack of hunger. Without
marijuana I couldn't take these medications... I don't get high (I don't
get a buzz at all, and neither do most patients who use it regularly.

Those feelings wear off, you don't get that. I've tried many different
prescriptions (Marinol, Compazine, you name it. They didn't work for me and
I don't take them any more.

"The presence of marijuana on Schedule I makes no sense, given that Marinol
is an extract of the plant's main active ingredient. Why would you
replicate a chemical of a plant if it has no medical value whatsoever?...
The patients that are receiving marijuana from the federal government all
continue to receive it, and Dr. Ethan Russo's study shows that it hasn't
had any longterm negative effects; it's helping them and they should
continue the treatment.

"I worked on the law that got the research program going here in
California, but I couldn't sign up for a study under the program because
the quality of the marijuana I would have to use is so inferior to what's
available (only two to four percent THC

"I visit an HIV specialist but I don't ask her do my recommendations
because I don't want her jeopardized. We need her drastically. I have
another doctor, whom I also see regularly do it. I urge you and I beg you
to encourage your colleagues to stand up and write recommendations and not
force patients to have to search for a doctor who also has to be in fear.
The reason why certain doctors write more recommendations is that we have
to go to them; they're the only ones who will look at our situations and
deal with it. The doctors we've been seeing on a continuous basis are fearful."

Jay Bergstrom: "I just won a round with melanoma, and I made my doctors go
absolutely white and run from the room when I tried to get a
recommendation. The fear is just palpable.

And from then on you have to wonder if you're getting second-level care,
because they're scared when you come into the office. I can feel the
change ever since I asked for a recommendation."

Frank Lucido, MD, a family practioner whose office is in Berkeley, handed
the committee members a detailed prepared statement, plus a statement from
Bearman, then hurriedly read them his key points. He alerted them tp the
recent resolution by the California Medical Association urging the Board to
issue clear, practical practice standards for physicians who approve
marijuana use by their patients. "Unfortunately, " Lucido observed, "there
is still no medical or legal definition of "good faith exam.'"

Lucido called on the Board to "be more discerning in deciding which
complaints to investigate, and from what source." Top priority, he
suggested, should be given to complaints "from a patient, family member,
caregiver, or healthcare provider alleging that harm was induced by the
practitioner." Lowest priority should go to "Complaints from other parties
alleging standard-of-care violations (but no harm to patient)."

Departing from his prepared text, Lucido glanced towards Thornton and said,
"The derogatory comment about a cash register implies that people are doing
it only for the money.

I don't know any doctor that doesn't charge.

So I don't know why that ever came up.

Lucido oberserved that "the California Narcotics Officers Association
website states "There is no justification for using marijuana as medicine'
(a lie contradicted by the federal government's own Institute of Medicine
Report." His bottom-line advice to the Board: "Drop all ongoing
investigations to date of physicians based on misunderstanding of the law
and/or the benefits of medical cannabis, especially those based only on law
enforcement complaints, in light of their clear misinformation."

Steph Sherer, director of Americans for Safe Access, told the Board, "In my
office we receive at least five phone calls a day from seriously ill
Californians who have gone to their doctors and asked if this was a
possibility for their treatment.

About 75% of the doctors say they won't recommend cannabis out of fear of
the Medical Board and the federal government; 25% don't understand the
medicinal value of cannabis." The doctors being investigated, said Sherer,
are the outspoken ones. "People are being attacked for their bravery," was
her succinct summary of the situation.