Pubdate: Thu, 04 Nov 2004
Source: AlterNet (US Web)
Copyright: 2004 Independent Media Institute
Author: Peter Gorman, AlterNet
Cited: Tod Mikuriya
Bookmark: (Tod Mikuriya)
Bookmark: (Cannabis - Medicinal)
Bookmark: (Conant vs. McCaffrey)


In November 1996, the voters of California passed Proposition 215, the 
Compassionate Use Act. That law permitted patients throughout the state to 
use, possess and grow cannabis and their caregivers to possess, grow and 
provide cannabis on the recommendation of a physician.

One month later, in response to what the federal government saw as an 
erosion of cannabis prohibition in California, then-drug czar Barry 
McCaffrey held a press conference to discuss the new law. One of his props 
was a large flip-chart at the top of which was printed: "Dr. Mikuriya's 
Medicine." Below it was a long list of ailments for which Dr. Tod Mikuriya, 
a respected Berkeley, Calif. psychiatrist and co-author and medical advisor 
of Prop 215, was alleged to have claimed cannabis was beneficial. Along 
with glaucoma, cancer and AIDS were zingers like "Recovering Forgotten 
Memories," and "Writer's Cramp," that made the whole list suspicious.

"This isn't medicine." McCaffrey cracked. "This is Cheech and Chong medicine."

The press conference was the first salvo in the government's war against 
pot patients, caregivers and doctors who write medical-marijuana 
recommendations. Chief among the targets was Mikuriya, who has written more 
than 7,000 such recommendations, more than 10 percent of the total number 
of recommendations written statewide.

The Set-Up

More than six weeks prior to McCaffrey's nationally televised news 
conference, the drug czar's office convened a meeting to decide how to 
handle the now-legal cannabis smokers in California. At that meeting, a 
range of responses to Prop 215 was considered. Among them were filing a 
suit claiming that federal law preempts the state propositions; a plan to 
initiate federal criminal prosecution of medical-marijuana users; federal 
support of state and local arrests and seizures based on violation of 
federal law; and developing a strategy for taking action against physicians.

The feds decided in favor of the latter option. The plan was spelled out 
during McCaffrey's Dec. 30 press conference, when HHS Secretary Donna 
Shalala announced that doctors who recommended marijuana risked having 
their federal DEA licenses to prescribe controlled drugs revoked, and 
worse, criminal prosecution and being excluded from Medicare.

While this tactic scared most doctors out of making such recommendations, 
many others saw the threat for what it was: an infringement on doctors' 
First Amendment right to discuss whatever they choose with a patient, as 
well as their ability to make reasonable medical recommendations, which 
might include the use of medical marijuana something doctors had been 
quietly doing long before Prop 215 passed.

One of those doctors, AIDS specialist Dr. Marcus Conant, sued the federal 
government in January 1997 over its infringement of his right to speak 
freely with patients. Conant was joined by 14 other doctors and patients in 
the class-action lawsuit (initially Conant v. McCaffrey, and later, Conant 
v. Walters John Walters, McCaffrey's successor), which resulted in an 
injunction against the federal government's planned course of action. The 
case eventually went to the Supreme Court in 2003, which held that the 
government could not threaten or intimidate doctors for recommending 
marijuana to patients. The feds were trumped.

That should have been the end of the harassment of California's physicians.

But on Oct. 28, 1997, California Attorney General Dan Lungren's office, 
heading by senior assistant DA John Gordnier, sent out a notice to all law 
enforcement personnel and county district attorneys in the state that 
included this request: "If your jurisdiction has received recommendations 
signed by either Dr. Eugene Schoenfeld or Dr. Tod Mikuriya, please notify 
John Gordnier."

Dr. Hip

"I don't think they knew how they were going to use the information they 
were collecting at that time," says Mikuriya. "They were just hoping to 
find something they could jump on, something illegal or patently out of line."

More of a pop celebrity, Schoenfeld, who was director of the Haight-Ashbury 
Free Clinic during the '60s, was known as "Dr. Hip" to his readers 
(Berkeley Barb) and "The Modern Rock Doc" to his listeners (KITS-FM in San 

Berkeley's answer to Harvard's Dr. Lester Grinspoon, Mikuriya, author of 
"Marijuana Medical Handbook: A Guide to Therapeutic Use," is one of the 
world's foremost authorities on the uses of medical cannabis, having spent 
nearly 35 years researching the subject.

While Schoenfeld kept a lower profile to stay under the radar though he 
still made appearances at hemp fests and such Mikuriya became more of a 
thorn in the anti-medical marijuana crusaders' side. But how could they get 

Despite all the information that might have poured into Lundgren's office 
(Bill Lockyer replaced him in January 1999), nothing about Mikuriya's 
recommendations was out of line.

"I write a lot of recommendations because I have a lot of patients," Dr. 
Mikuriya says. "About 40 percent of them are recommended to me by their 
primary physicians who either know nothing about the benefits of medical 
marijuana or are too scared to write recommendations themselves. The rest 
were self-medicating before I ever saw them. Then there are countless 
others who simply know that cannabis is beneficial to their condition, 
whether that be depression, anxiety, post-traumatic stress and attendant 
inability to sleep because of recurring nightmares related to that stress 
or any number of other disorders."

While the vast majority of California's 38,000 physicians were too 
frightened to stand tall and recommend marijuana to needy patients. 
Mikuriya did just that. "I knew there would be heat," he says. "I don't 
mind. Someone's got to take it. We have a law. Medical cannabis is legal 
here, for god's sake!"

 From Bucks County to Berkeley

Mikuriya knows about taking heat and being a target. Born in 1933 in rural 
Bucks County, Penn., to a Japanese father and a German mother, he was 7 
years old when Japan attacked Pearl Harbor. His father wasn't sent to an 
internment camp like so many Japanese-Americans were in California, but his 
family was visited by the FBI (a camera and a radio with a short wave band 
were confiscated).

"It was a good lesson," Mikuriya recalls. "I learned early how to be 
marginalized and scapegoated. My parents, two sisters and I learned what 
racism and prejudice looked like. We couldn't travel more than 50 miles 
from our home and in many places in town we were not welcome. The irony is 
that my father worked as a defense contractor."

Mikuriya's love affair with cannabis began by accident while he was in 
medical school at Temple University, when he read an unassigned chapter 
about it in a book in pharmacology class during his sophomore year.

"It was March 1959, and by that summer I'd read everything in the medical 
school library on cannabis," he says. "My curiosity wasn't something I 
shared with classmates. I kept my interest quiet and made it my personal 
obsession. But after I'd read everything I thought I'd culminate my 
experience and try some out. So I went to Mexico that same year and bought 
joints from a street dealer. I had him pick one out of the group and light 
it up and take some hits before I did, just to see that it wasn't poison. 
And once I assumed it was safe to give it a try I said goodbye and embarked 
on the laboratory portion of my experience."

He quickly became a voracious reader of cannabis literature and its medical 
uses. When the chance came a few years later to work with Humphrey Osmond 
the man who coined the word "psychedelic" he jumped at it. Mikuriya became 
director of the Drug Abuse Treatment Center at the New Jersey 
NeuroPsychiatric Institute where Osmond was director of Research and 
Neurology in Psychiatry.

"Humphrey was an international treasure, a charming man and one of the most 
well-read scientists I ever met," Mikuriya says. "He pursued the idea that 
certain psychoactive drugs could mimic certain mental illnesses, like 
schizophrenia, with the hope that metabolites of those psychoactives would 
be diagnostic of mental illness. It was a little heady for me at the time. 
But he was also fun to be around. He'd have these wonderful garden parties 
with people like Tim Leary and the Diggers interesting folk."

During his time at the Institute the Mikuriya began traveling to pot spots 
like Morocco and Nepal. His experiences in Morocco led to him write the 
paper "Kif in the Rif," about Morocco's traditional hashish-using community 
in the Rif Mountains.

In 1967, he was recruited by the U.S. government's National Institute of 
Health to do medical-marijuana research. The job didn't last long.

"The government wasn't looking for research," Mikuriya says. "They wanted 
bad things found out about marijuana and I didn't find them." He pauses. 
"One of my most interesting assignments with the NIH was being sent to spy 
on communes around San Francisco and report back to the department on what 
kinds of pot abuse I discovered. You might look on me as a defector!"

Mikuriya, however, liked San Francisco so much that he stayed, taking a 
position as attending psychiatrist at the Gladman Hospital a job he held 
for 21 years and opening his private practice in Berkeley.

Bringing the Doctor Down

The California Medical Board the agency that issues doctor's licenses and 
also has the power to revoke or suspend them consists of an executive 
committee of doctors appointed by the governor who set policy, and an 
investigative branch made up entirely of career law-enforcement officers. 
If a complaint warrants an administrative hearing, the board is represented 
by the Attorney General's office. The normal course of events is to have 
disgruntled patients or their loved ones or other physicians make the 
complaints. In Mikuriya's case, none did.

In 2002, complaints were filed against him by rural police, narcotics 
officers and county district attorneys, resulting in a request by the 
medical board for the records of 44 patients. When Mikuriya refused, the 
records were subpoenaed. Official complaints were made regarding 17 
patients and the medical board scheduled hearings for September 2003 to 
establish their merit. While several California doctors had been 
investigated by the board, none had resulted in hearings until Mikuriya's.

The prosecutors assigned to the case were Larry Mercer and Jane Zach Simon 
like Gordnier, holdovers from the Lungren days. To "catch" Mikuriya, the 
DA's office sent an undercover narcotics officer to the Marijuana Referral 
Services clinic in Oakland. The officer lied to Mikuriya about a shoulder 
injury, stress and a sleep disorder to secure a cannabis recommendation.

"I recommended that he get physical therapy and more sleep, and that he 
should try using a vaporizer rather than smoking the cannabis he said he 
was using," says Mikuriya.

At a pre-hearing settlement conference in July 2003, Mikuriya was offered a 
deal that would've given him four years' probation and require him to 
reimburse the board $10,000 for legal fees. If he didn't settle, additional 
charges would be filed against him.

"One of the stipulations was that I couldn't sue them," he says. "In a 
pig's eye! If I'm going to have to live with a Joan of Arc model of social 
responsibility I'm going to be the most sour thorn in their side they've 
ever met." Mikuriya turned down the offer.

At the hearing, Mikuriya was charged with negligence, incompetence and 
furnishing dangerous drugs without prior examination. Laura Duskin, a 
Kaiser HMO psychiatrist who had never recommended medical marijuana, 
testified that she'd reviewed the 17 patients' records (though she declined 
to interview the patients themselves) and concluded that Mikuriya had 
failed to conduct adequate physical exams, specify treatment plants, order 
tests and keep good records.

Nine of the 17 patients testified on Mikuriya's behalf. They all agreed 
that the doctor carefully reviewed their medical histories and dispensed 
caring advice during his 15-20-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.

While he admitted he frequently doesn't touch patients or take their vital 
signs, Mikuriya said he carefully observes their physical demeanor, asks 
them to fill out a research questionnaire and relies heavily on their 
self-reported symptoms. "My job," he asserts, "is to simply ascertain 
whether, when presented with a set of symptoms, cannabis would or could 
help. Nothing more."

Mikuriya's own key witness, Dr. Philip Denney, said he, like Duskin, had 
reviewed the 17 patient files and found that Mikuriya's exams were more 
than adequate to make a decision. In fact, Mikuriya has turned down at 
least 3,000 people seeking medical-marijuana recommendations over the years 
because he either felt the patients were lying about their conditions or 
didn't have conditions that would be helped by cannabis.

The hearing concluded after six days. In his ruling nearly five months 
later, Judge Lew determined Mikuriya was guilty of gross negligence for 
failing to properly examine his patients before recommending cannabis. 
"They didn't do an investigation of me, they carried out a vendetta," he 
rails. "An investigation would have included interviewing the patients 
themselves, caretakers, family members and other doctors. None of that was 

On April 29, Mikuria began serving a five-year period of medical practice 
probation ordered by Judge Lew. He must pay $75,000 for the cost of his 
prosecution and is no longer able to see patients in his home, something 
he'd done for 30 years. His records are spot-checked by the California 
Medical Board, he is not allowed to do telephone follow-ups with patients 
and is required to disclose his medical-marijuana recommendations to 
patients' primary physicians. A second doctor has to review his patients' 
records at Mikuriya's expense.

Planning an Appeal

Mikuriya's down, but he's not out. He's already filed a civil suit against 
the officers and prosecutors involved in the medical board case against 
him, and he's planning to appeal Judge Lew's decision. That would have 
already been done but it took until late May to get the transcripts of the 
September hearings.

"I don't know how but I'm not going to let them get away with this," he 
says. "They're just criminals under the color of authority. Time and time 
again my patients continue to be harmed by these moral reprobates."

One of the angles of the appeal he'll pursue is that Judge Lew didn't 
disclose that he's a board member of the Powerhouse Ministries of Folsom, 
Texas. The group's website has a section on substance abuse that reads, 
"Nobody likes slavery. And no one wants to be a slave. Yet, every day in 
our community people 'awake' to find out that they have become enslaved to 
some substance. For some it's marijuana..."

In his corner, Mikuriya has the NorCal, his malpractice insurer who 
furnished an attorney for the September hearing, and the California Medical 
Association (CMA), which will be filing an amicus brief on the doctor's 
behalf. Alice Mead, an attorney who sometimes works for the CMA but said 
she could not speak for the organization, has compared Mikuriya and the 
other doctors who make the vast majority of the medical-marijuana 
recommendations in California to the early HIV doctors.

"When the HIV epidemic had just broken out, many physicians were ignorant 
of HIV and fearful of HIV and they didn't want to take HIV-infected 
patients," observes Mead. "There were a few brave and informed physicians 
who did take a lot of those patients, a disproportionate number. We never 
said they treated too many HIV patients."

If Dr. Mikuriya goes down, the handful of doctors also putting their 
professional necks on the line for medical marijuana will be the next 
targets of the California Medical Board. And if they go down, so does 
medical marijuana in California.

"I can't tell you how many lives are severely disrupted and ruined by these 
molestations." Mikuriya says. "This is a level of atrocity with the most 
vulnerable sector of society being preyed upon by people who have sworn to 
uphold the law and protect them. Boy, if that isn't perversion!" 
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