Pubdate: Wed, 24 Mar 2004
Source: Anderson Valley Advertiser (CA)
Column: Cannabinotes
Copyright: 2004 Anderson Valley Advertiser
Contact:  http://www.mapinc.org/media/2667
Author: Fred Gardner
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/people/Leveque (Dr. Phil Leveque)
Bookmark: http://www.mapinc.org/people/Mikuriya (Tod Mikuriya, MD)
Bookmark: http://www.mapinc.org/people/Souder (Rep. Mark Souder)

INVITATION TO AN AMBUSH

As reported here last week, Dr. Phil Leveque -the pro-cannabis Oregon 
osteopath whose license was suspended March 4- has been invited to appear 
before the House Government Reform Subcommittee on Criminal Justice, Drug 
Policy and Human Resources.  Claudia Jensen, MD, got invited, too. No other 
doctors have, as far as we know. The "investigative hearing" is scheduled 
for the afternoon of April 1.

The Subcommittee is chaired by Rep. Mark Souder, an Indiana Republican who 
wrote the grotesque bill that cuts off financial aid from students who have 
committed "drug crimes" (including marijuana possession in high 
school).  Souder's proudest accomplishment of 2003 was legislation 
reauthorizing the Drug Czar's office and its operations for five more years.

The Souder aide who's organizing the April 1 hearing, Nick Coleman, says 
that the committee's interest in Jensen stemmed from an L.A. Times article 
that focused on her recommendation of cannabis for ADHD patients -including 
a teenager. Jensen's colleagues assume Souder's purpose is to show 
pro-cannabis clinicians in a bad light and to develop neo-prohibitionist 
legislation.  Some have advised her to decline the invitation to appear.

But Jensen relishes the chance to discuss the safety and efficacy of 
cannabis in the hallowed halls of Congress, and she is not reluctant to 
tell Rep. Souder about the teenager whose cannabis use she authorized.  She 
plans to bring her two daughters, ages 16 and 13, who have never seen 
Washington, D.C.  April's a good time to go there.

Most influential among Rep. Souder's corporate sponsors is Eli Lilly, 
headquartered in Indianapolis. Lilly is in the midst of a major marketing 
push for "Stratera," an ADHD drug. With millions of American school 
children taking drugs for ADHD, is it pure coincidence that the gentleman 
from Indiana is contemplating legislation that would eradicate the 
strongest potential competition?

Mikuriya Decision Ratified

The Medical Board of California has ratified without modification the 
"proposed decision" from Administrative Law Judge Jonathan Lew that will 
put Tod Mikuriya, MD, on probation for five years, during which time he 
must be "monitored" by a fellow physician. The pro-cannabis psychiatrist 
was also ordered to pay $75,000 towards the cost of his own prosecution, 
and to stop seeing patients at his home office in the Berkeley Hills.

Mikuriya says he can accept the prospect of a monitor -Lew specified that 
it could be a fellow cannabis specialist-but not the fine or the constraint 
on where he can practice.

A panel of six Medical Board members reviewed Lew's decision and agreed 
that Mikuriya had made "extreme departures from the standard of care" in 
his treatment of 17 patients.  The "departures" generally involved failure 
to conduct a physical exam or devise a treatment plan, and issuing letters 
of approval implying that patients were under Mikuriya's ongoing care. 
Mikuriya argued that as a "cannabis consultant" his role was narrower than 
a primary-care physician's, and that none of his patients had been misled 
or harmed.

The hearing last September came down to a clash between two expert 
witnesses on the procedures required of a doctor approving cannabis use by 
a patient.  For the prosecution, Kaiser psychiatrist Laura Duskin said the 
standard of care was determined by a 1997 "statement" by the Medical Board 
directing doctors to conduct a physical exam and to follow the same 
procedures when recommending cannabis that they would in prescribing any 
other drug.

For the defense, Philip A. Denney MD said that the 1997 statement should 
not apply to physicians whose sole function is to determine whether a given 
patient has a condition for which cannabis is an appropriate treatment. 
Lew's decision referred respectfully to Denney's testimony, but noted that 
Denney, as a practitioner, takes his patients' vital signs and conducts 
physical exams.

Mikuriya intends to appeal the Medical Board's order. He has two basic 
options: ask the Board to reconsider (this must be done before April 19, 
when the order takes effect), or appeal to the Superior Court.

Some lawyers experienced in dealing with state boards say it's a waste of 
time to ask the board itself for reconsideration. "Why bother with 
reconsideration?" sayeth the smart money, "Why put more energy into going 
back to the same board that's just hosed you? You don't have to do that to 
go on [with an appeal], so why do the exercise?"

In Mikuriya's case there is a special circumstance that might warrant his 
asking for reconsideration. The Board's 1997 guideline defining the 
standard from which Mikuriya was found to have made an extreme departure is 
being revised by a working group that includes representatives from the 
California Medical Association and the Board's Enforcement Division. If the 
working group -to which Board members William Breall, MD, and Linda Lucks 
have recently been added- comes up with practice standards that don't 
require a physical exam, Mikuriya would have a common-sense basis on which 
to request reconsideration.   The revised guidelines are supposed to be 
discussed at the Board's May meeting.

Attorney John Fleer thinks the Board's decision to fine Mikuriya and put 
him on probation "shows everyone's unease with imposing the standard 
they're imposing. In most cases involving the medical board, or any state 
board, where you have even one extreme departure, let alone this many, it 
would follow that they'd revoke a license. That the order doesn't do that 
shows some recognition that this is a developing issue. Dr. Mikuriya wasn't 
found to be operating in bad faith -just wrong about the standard he had to 
follow."

If Mikuriya's lawyers choose to appeal directly to the Superior Court, they 
can do so either in Alameda County, where the hearing was held, or in 
Sacramento County, where the Medical Board is headquartered. Fleer says the 
advantage of Sacramento is that two judges are assigned to this 
administrative-law appellate-type work. "They are more experienced, they 
take it real seriously, and they understand how boards work - how arbitrary 
they sometimes can be.  This would not be a matter of first impression for 
the judges in Sacramento as it may be for judges in other county superior 
courts."

If and when Mikuriya files a writ to appeal the order, the Superior Court 
judge would read the entire record and decide the matter anew. "It's not 
just a question of saying 'Was there substantial evidence to support what 
the [lower-level] judge did?' It's a trial de novo, based on the hearing 
record," Fleer explains.

In other words, a  Superior Court judge would read what Laura Duskin said 
was the proper standard of care, and would read what Mikuriya and Denney 
proposed, and evaluate their reasoning, and give weight to who was in a 
position to know best.  "It's not unusual for there to be two different 
standards being proposed by two different experts," says Fleer, who remains 
hopeful. "What the Board has done is accept the testimony of a physician 
who doesn't do cannabis recommendations over that of two who do.  There 
might be judges who think that's an absurdity."

Fleer also used "absurdity" to characterize the $75,000 bill for cost 
recovery the board has ordered Mikuriya to pay.  "It's a stunning amount 
for investigative and prosecution costs. It shows how much effort was put 
in by the state to dredge up a case where there was no complainant," says 
Fleer. (None of the complaints against Mikuriya came from patients, they 
all came from law enforcement.)
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MAP posted-by: Jay Bergstrom