Pubdate: Fri, 02 May 2003
Source: Berkeley Daily Planet (US CA)
Copyright: 2003 The Berkeley Daily Planet
Author: Fred Gardner, Special to the Planet (05-02-03)
Bookmark: (Cannabis - California)


Lawyers for Tod Mikuriya, M.D. - a psychiatrist who has lived and practiced
in Berkeley since 1970 - have filed a motion to dismiss the case against him
brought by the Medical Board of California (MBC). If the motion fails,
Mikuriya will spend the week of May 19 in an Oakland courtroom defending his
handling of 17 cases in which medical board investigators claim he "departed
from the standard of care."

Mikuriya, 69, is a leading authority on the medicinal use of cannabis. He
has edited an anthology of pre-prohibition scientific papers and reported
extensively on his own clinical observations. Since Proposition 215 passed
in 1996, legalizing marijuana for medical use in California, he has approved
and monitored its use by more than 7,000 patients, most of them seen at ad
hoc clinics arranged by cannabis clubs in rural counties.

(Many California doctors have been afraid or otherwise reluctant to approve
cannabis use by patients whose conditions are not terminal. Mikuriya has
been willing to approve its use to alleviate physical or emotional pain.)

The medical board is the state agency that issues doctor's licenses and can
revoke or suspend them. Its policies are voted on by physicians appointed by
the governor; its day-to-day operations are conducted by investigators who
are career law-enforcement officers.

Mikuriya says that not one of the board's investigations into cases he
allegedly mishandled stemmed from a complaint by a patient or a patient's
loved one.

"Nor were any of the complaints from other physicians or health care
providers," he adds. "They came from cops and sheriffs and deputy DAs in
rural counties who couldn't accept that a certain individual had the right
to use marijuana. And not one of their complaints alleges harm to a

Mikuriya is represented by his longtime personal attorney, Susan Lea, and by
Bill Simpich and Ben Rosenfeld - members of the team that sued the FBI on
behalf of Darryl Cherney and Judi Bari. He is also represented by John
Fleer, who is retained by Norcal Insurance, Mikuriya's malpractice carrier.

"We helped him review his files, case by case," says Fleer. "I've been doing
this for 20 years and I have a feel for whether a doctor has a detailed
understanding of a case. Mikuriya not only had understanding, he had an
unusual level of sympathy for his patients  I'm afraid the board is holding
him to an artificially high standard."

The primary basis for dismissal, according to Mikuriya's motion, is the
section of state law established by Proposition 215 (Health and Safety Code
section 11362.5) which reads: "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

Although the MBC investigation is ostensibly about departures from the
standard of care, Mikuriya's defenders say it's really about
medical-marijuana recommendations.

A letter to Mikuriya from senior investigator Thomas Campbell, dated June
28, 2002, states bluntly, "The Medical Board of California has concluded its
investigation into the matter of your treatment and subsequent
recommendations and approval of medical marijuana for numerous patients."

Almost all of the patients Mikuriya sees had been self-medicating with
cannabis before consulting him. He says that the 15-to-20-minute exams he
conducts are sufficient to take a full history, review a patient's medical
records and prior test results, make or confirm a diagnosis, discuss various
aspects of cannabis use (he routinely advocates the use of a vaporizer), and
note his findings and observations. His initial interviews, he says, "are
always face to face, in person, confidential and live." Follow-ups may be
via video, phone or e-mail.

"Successful doctor-patient relationships are characterized by candor and
trust," Mikuriya said. "Removing the stigma of criminality promotes candor
and trust."

The medical board charges that Mikuriya didn't establish bona fide
physician-patient relationships. "The board is seeking to hold Dr. Mikuriya
to an ambiguous standard of care," says Lea, "that doesn't even apply to
most primary care doctors and specialists, let alone doctors acting as
medical consultants."

Ironically, since the passage of Proposition 215, Mikuriya has been
imploring the medical board to develop clear-cut guidelines for doctors who
recommend cannabis. In February of this year he introduced a resolution
urging the California Medical Association to lobby the medical board to
create such guidelines.

Mikuriya's motion to dismiss asserts that the case against him was initiated
by "a coterie of federal and state law enforcement officials," led by former
Attorney General Dan Lungren and Drug Czar Barry McCaffrey. Shortly after
Proposition 215 passed, Lungren instructed California police chiefs,
sheriffs and district attorneys to keep arresting and prosecuting citizens
for using and cultivating marijuana, and to force their doctors to testify
in open court. Lungren then flew to Washington, D.C., to strategize with the
drug czar and other federal officials opposed to the implementation of
Proposition 215.

On Dec. 30, McCaffrey held a televised press conference at which he warned
California physicians that recommending marijuana could cost them their
licenses. McCaffrey displayed and ridiculed a long list of conditions for
which marijuana reportedly provides relief. It was headed "Dr. Mikuriya's
(Proposition 215 Medical Advisor's) Conditions," and McCaffrey dismissed the
whole field of medical marijuana as, "Cheech and Chong medicine."

In response, a group of Bay Area physicians and patients, led by AIDS
specialist Marcus Conant, sued the drug czar on First Amendment grounds. The
plaintiffs got an injunction barring the feds from taking action against
California doctors who "in the context of a bona fide physician-patient
relationship, discuss, approve or recommend the medical use of marijuana."
Mikuriya's lawyers argue that the Conant injunction "applies with equal
force to other government actors, such as the complainants in this case."

In addition to documents establishing the Lungren-McCaffrey connection,
Mikuriya's lawyers are citing an October 1997 memo from Lungren's right-hand
man, Senior Deputy Attorney General John Gordnier, requesting that district
attorneys in all 58 counties notify him of any cases involving
medical-marijuana recommendations by Mikuriya and one other doctor (Eugene
Schoenfeld, who once upon a time wrote the Dr. Hip column for the Berkeley

Two of Gordnier's assistants, Deputy Attorney Generals Jane Zack Simon and
Larry Mercer, are slated to argue the medical board's case against Mikuriya.

"I can't understand why [Attorney General] Bill Lockyer would assign these
two prosecutors to the case," said Simpich. "It's almost as if he's granting
Dan Lungren a last request from beyond the political grave."

It remains to be seen what penalty the board would impose if the charges
against Mikuriya are upheld, but patients and staff at local dispensaries
are fearful.

"It seems that Dr. Mikuriya has been targeted for being knowledgeable and
outspoken," says Debby Goldsberry, director of a medical marijuana care
facility on San Pablo Avenue. "Patients are afraid of losing his expert care
and advice. Everybody's wondering, 'Who'll be next?'"
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