Autumn 2004
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
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Medical Board Says it Won't
Investigate Doctors Just for Approving Cannabis Use; So Why is
Dr. Tod Being Punished?
By Fred Gardner
At its Spring meeting the Medical Board of California voted unanimously to
issue a “Statement” entitled “California Physicians & Medical Marijuana.” It
was duly posted on their website and mailed out to the approximately 100,000
physicians licensed by the Board in the July 2004 Action Report.
It opens with good news for doctors who do cannabis consultations:
“The Medical Board of California (MBC) developed this statement because medical
marijuana is an emerging treatment modality.”
“That in itself is a gratifying acknowledgment that marijuana is a safe and effective
medicine,” says Frank Lucido, MD, a Berkeley family practitioner who has been
urging the Board to confirm the rights of California doctors to recommend or
approve cannabis use by their patients.
The Statement goes on: “The Medical Board wants to assure physicians who choose
to recommend medical marijuana to their patients, as part of their regular
practice of medicine, they WILL NOT [all caps in original] be subject to investigation
or disciplinary action by the MBC if they arrive at the decision to make this
recommendation in accordance with accepted standards of medical practice. The
mere receipt of a complaint that the physician is recommending medical marijuana
will not generate an investigation absent additional information indicating
that the physician is not adhering to accepted medical standards.”
In the years since Prop 215 legalized marijuana for medical use in California,
almost all the complaints against doctors who recommend it have come from law
enforcement sources and have been “absent additional information.” Lucido and
other doctors and concerned citizens have pointed out this pattern to the Board
and demanded that investigations be triggered only by substantial, unbiased
complaints.
Two Board members and two staff members have told O’Shaughnessy’s that the
July Action Report was meant to reassure doctors who do cannabis consultations.
And yet the very same Action Report contains this listing under “Administrative
Actions,” i.e., among the incompetents, perverts and quacks: “Mikuriya, Tod,
H., M.D. (G9124) Berkeley, CA.”
What did Mikuriya do and what shall be the status of his license to practice?
“Committed acts of gross negliigence, repeated negligence, recommended and approved
the use of a controlled substance without conducting a prior good faith examination,
and failed to maintain adequate and accurate medical records in the care and
treatment of 16 patients. Revoked, stayed, placed on 5 years probation with terms
and conditions, including, but not limited to, obtain a practice monitor. Judicial
review being pursued.”
The Action Report doesn’t mention the $75,000 fine Mikuriya was
ordered to pay
Tod Mikuriya, MD after recieving Marijuana
Medical Papers from the publisher in 1973.
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The Action Report doesn’t mention the $75,000 fine Mikuriya was ordered
to pay to defray the cost of his own investigation and prosecution.
Or that he has been denied the right to see patients at his home office
in the Berkeley Hills.
“I’ve had a permit from the city to see patients here since 1970,” says Mikuriya
ruefully. “The office is on a separate floor from my residence and has its own
entrance...”
“Dr. Tod”
Mikuriya, known with affection and respect as “Dr. Tod” to thousands of Californians,
is a scholarly, 71-year-old psychiatrist who has spent his entire career studying
the medical effects of cannabis. It is unlikely that his persecutors understand
his stature.
He grew up in Eastern Pennsylvania and attended Quaker schools. “The Quakers
were proprietors of the Underground Railway,” he says. “The cannabis prohibition
has the same dynamics as the bigotry and racism my family and I experienced
starting on December 7, 1941, when we were transformed from normal-but-different
people into war-criminal surrogates.”
Mikuriya prepped at the George School, then attended Haverford College (briefly),
and graduated from Reed. He went to Temple University School of Medicine, where
he read through all the pre-prohibition literature on cannabis. He did a rotating
internship at Southern Pacific General Hospital in San Francisco; specialized
in psychiatry at Oregon State Hospital in Salem; and completed a residency
at Mendocino State Hospital in Talmadge. In 1967 he became the first director
of non-classified marijuana research at the National Institute of Mental Health.
He left when he was instructed to look only for negative effects, and went
into in private practice.
In 1970 Mikuriya published a report in “Medical Times” on a patient who was
using cannabis to reduce her alcohol intake —an early example of the approach
now known as “harm reduction.”
In 1972 having settled in Berkeley, Mikuriya self-published “Marijuana Medical
Papers,” an anthology of pre-prohibition journal articles devoted to cannabis.
He was a consultant in ’72 to the National Commission on Marijuana and Drug
Abuse —known as the Schafer commission— which advocated decriminalization and
was ignored by former President Richard Nixon.
Through the long years of cultural and political rollback, Mikuriya served
as physician and consultant to would-be reformers, and did what he could to
educate the millions of Americans who smoked marijuana but knew nothing about
its history as a medicine.
He worked as an attending psychiatrist at Gladman Hospital from 1970 through ’91.
He was chair of the Department of Psychiatry, Eden Medical Center, Castro Valley
(1993-94); and attending psychiatrist at Laurel Grove, Vencor, Alameda County
Medical Center, and San Leandro Hospital. He established the first methadone
maintenance treatment program in Alameda County.
In the early 1990s, when Dennis Peron opened the first cannabis buyers club
in San Francisco in response to the AIDS epidemic, Mikuriya saw “a unique research
opportunity,” signed on as medical coordinator, and began interviewing patients.
For what conditions were people actually using marijuana? In what forms and
at what dosages? What results were they reporting? How did this new data compare
to reports in the medical literature from the years when cannabis was a legally
prescribable drug?
Mikuriya developed a registration form designed to collect and organize the
members’ anecdotal evidence. It included a list of more than 50 conditions
for which cannabis provided relief according to the pre-prohibition literature,
updated to include “conditions that people who seemed to be credible had been
treating with marijuana.”
Based on the data Mikuriya had collected, Peron decided not to limit the initiative
he drafted in ’95 (which was placed on the ballot as Proposition 215) to a
finite list of conditions, but to include the all-important phrase “...and
any other condition for which marijuana provides relief.”
After Prop 215 won at the polls in November ’96, Mikuriya prepared “a protocol
for buyers clubs,” asking staffers to collect data on efficacy and dosage from
as many members as possible. His goal was to transform anecdotal evidence into
serious epidemiological data.
The Infamous Chart
For his efforts, Mikuriya was ridiculed on worldwide television (CNN) by federal
officials. On December 30, Drug Czar Barry McCaffrey, flanked by US Attorney
General Janet Reno, Secretary of Health & Human Services Donna Shalala,
and director of the National Institute on Drug Abuse, Alan Leshner, mocked
Mikuriya’s claim that marijuana could be used in treating diverse conditions.
The Drug Czar stood alongside a large chart entitled “Dr. Tod Mikuriya’s, (215
Medical Advisor) Medical Uses of Marijuana:” (sic content and punctuation).
Twenty-six conditions were listed in two columns. One of the conditions was
misspelled —“Migranes.” Three of them -”Removal of Corns,” “Writer’s Cramp,” and “Recalling
Forgotten Memories” —never appeared in the extensive list of conditions Mikuriya
had advised cannabis buyers clubs to be tracking.
McCaffrey told the media, “This isn’t medicine, this is a Cheech and Chong
show.” He and Reno warned that the use of marijuana violated federal law and
would lead to reprisals, including the loss of prescription-writing privileges,
for any doctor who recommended it to patients. Reno said that prosecutors would
focus on doctors who were “egregious” in recommending marijuana.
Mikuriya commented at the time, “As doctors become more fearful, I’ll obviously
get more and more patients who are using cannabis or are considering it. Will
that make it seem that there’s something ‘egregious’ about my practice?”
He called the McCaffrey chart “a crude dirty trick —the kind of disinformation
the U.S. military put out during the Vietnam War. Only in this case the ‘enemy’ is
the people of California.
“What’s saddest and most ominous is that the feds are not willing to challenge
this new law on the basis of what it says. They could have chosen a condition
that they consider to be in some gray area —say, insomnia, or colitis— and questioned
the appropriateness of marijuana as a treatment. But instead they chose to make
up some ludicrous falsehoods.”
The chart was prepared by McCaf-frey’s “Special Assistant for Strategy,” David
Des Roches, a West Point graduate. His source was a version of Mikuriya’s “Marijuana
Medical Handbook,” posted on a website. Des Roches acknowledged culling conditions
with an eye towards “showing how ludicrous some of them were.”
What an irony! Documenting the diverse conditions for which marijuana provides
relief is one of Mikuriya’s major contributions. His hypotheses as to why marijuana
is so widely effective are taken seriously by the International Cannabinoid
Research Society. And the narcs think he’s a scammer!
Cascade of Cases
Mikuriya was one of the very few doctors who publicly supported Prop 215. (It
was opposed by the entire medical establishment, including the California Medical
Association, former Surgeon General C. Everett Koop.) After it passed, except
for AIDS and cancer specialists, very few California doctors, especially in
the rural counties, were willing to approve cannabis use by their patients.
Mikuriya became known as the doctor of last resort. People who had been self-medicating
with cannabis and now wanted to do so legally visited his office from all over
the state, and he spent many week-ends flying off to underserved communities,
where he would see 20± patients a day at ad-hoc clinics.
During the first two years that marijuana was legal, i.e., through 1998, Mikuriya
wrote some 4,000 letters approving cannabis use -an estimated 1/3 of the total
written by all the doctors in California. Since then the number of doctors
writing approvals has gradually increased, and 15-20 have begun specializing
in cannabis consultations. Most of the specialists are members of a non-profit
founded by Mikuriya in 1998, the California Cannabis Research Medical Group.
[O’Shaughnessy’s is the CCRMG journal. Opinions expressed in signed articles
are the author’s, not necessarily the CCRMG’s.]
Mikuriya’s supporters contend that not just the feds but law enforcers at the
state and local levels have been out to get him because they opposed Prop 215,
they resent his role in getting it passed and implemented, they resent not
being able to prosecute marijuana growers and users as easily and successfully
as they once did, they accept the California Narcotics Officers Association
line that marijuana has no medical value, and they don’t respect the will of
the people.
In 1997 the top aide whom Lungren had put in charge of dis-implementing Prop
215, Senior Deputy Attorney General John Gordiner, took the highly unusual
step of sending an “Update” to all 58 California district attorneys asking
them to notify him of any cases involving Mikuriya and one other doctor well
known for doing cannabis consultations (Eugene Schoenfeld).
In 1998 the Medical Board, responding to complaints from a Napa County sheriff’s
deputy, began investigating Mikuriya’s treatment of W.H, a bedridden, quadriplegic
multiple sclerosis patient in his 40s. Mikuriya had paid a house call at the
request of W.H.’s conservator, examined W.H., and formally approved his cannabis
use. Neither patient nor doctor wanted to release the records but the Board
subpoenaed them. A formal Accusation was filed in July 2000. Mikuriya was confident
that he had acted properly and his lawyers were sure that he’d prevail.
Then, according to attorney Bill Simpich, “the hardcore anti-215 crowd in the
AG’s office realized they were going to lose and decided to round up all the
reports filed by DAs and cops who were ‘sore losers’ in Prop-215 cases and
seek the records of the victorious patients.” Simpich says that Senior Investigator
Tom Campbell built the Medical Board’s Accusation against Mikuriya by contacting
rural California law enforcement officials who had lost marijuana possession
and cultivation cases involving individuals whose cannabis use had been approved
by Mikuriya.
As noted, the Board’s investigation into Mikuriya’s practice was based entirely
on complaints from police officers, sheriffs, and district attorneys. Records
were subpoenaed after the doctor and patients refused to provide them. The
file swelled to 46 cases, but not a single patient alleged that Mikuriya had
provided inadequate care, nor did any complainant allege that a patient had
been harmed.
Mikuriya’s files were sent to the Board’s expert witness, Laura Duskin, MD,
a psychiatrist employed by Kaiser. After reading 16 of the cases, Duskin concluded
that the pattern of inadequate care was so consistent and blatant that there
was no need to cite all 46. An “amended accusation” was filed in June 2002
alleging that Mikuriya had provided substandard care to 16 patients.
At a settlement conference in July, 2003, Mikuriya was told that if he did
not accept the AG’s offer on behalf of the Board -seven years’ probation, remedial
training, another doctor monitoring his practice, and fines in excess of $30,000-
a charge would be added stemming from his treatment of an undercover officer.
As Mikuriya recalls that encounter, “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 declined the deal
and the Attorney General’s office kept its word by filing a “second amended
accusation” adding the charge involving Detective Gossett.
Through the looking glass
The Attorney General’s office prosecutes doctors on behalf of the Medical Board.
To present the case against Mikurya, AG Bill Lockyer assigned Deputy AGs Larry
Mercer and Jane Zack Simon, who had been members of a task force created by
Lungren (and headed by Gordnier) to limit the implementation of Prop 215. Mercer
and Simon, with Gordnier, had prosecuted Dennis Peron in 1998.
Deputy Ags Jane Zack Simon and Larry Mercer
prosecuted medical marijuana cases under former Attorney General
Dan Lungren. Their assignment to prosecute Mikuriya suggested
that AG Bill Lockyer was unwilling or unable to change the
prohibitionist orientation of the his office.
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Mikuriya’s hearing got underway Sept. 3 in a fluorescent courtroom at the state
office building in Oakland. It was presided over by Administrative Law Judge
Jonathan Lew, a trim, soft-spoken man with a businesslike air. The AG’s case
relied entirely on the testimony of Laura Duskin, the expert witness.
Duskin said she had read 16 of Mikuriya’s patients’ records (which had been
subpoenaed by the Medical Board after the doctor refused to hand them over)
and determined that he had failed each patient—not by approving their use of
cannabis, but by providing letters of approval stating that they were under
his “supervision and care” for their given conditions. In the Court of Common
Sense such phrasing —which implies an ongoing relationship instead of a one-time
consultation— would be considered, at worst, a semantic error. Laura Duskin
defined it as “an extreme departure from the standard of care.”
“From day one in medical school they teach us, ‘If you didn’t
write it down, it didn’t happen.’” —Laura Duskin
In some of the 16 cases, according to Duskin, Mikuriya had failed
to conduct an adequate exam, specify a treatment plan, or arrange proper
follow-up. Duskin said she could adduce all this from the files because, “From
day one in medical school they teach us, ‘If you didn’t write it down,
it didn’t happen.’” She quoted this literally false dictum as if it
were some sanctified truth, as if the paperwork really is more important
than the actual interaction between doctor and patient. She never contacted
any of the patients to question them about their treatment by Mikuriya.
The Cult of Documentation
Laura Duskin went to medical school at UC San Francisco. She did a residency
in psychiatry there, and retained a UCSF affiliation while working at San Francisco
General and, for 10 years, at Laguna Honda Hospital. She taught interviewing
techniques to resident physicians at UCSF and still gives “the occasional lecture,” she
said.
She is the personification of the San Francisco medical establishment in her
attitude towards marijuana. Although she/they never challenged its prohibition,
she/they now claim to believe in its relative safety and limited efficacy as
medicine.
“Marijuana can be very helpful for certain conditions for certain patients,” Duskin
testified (with Mercer and Simon nodding, as if in agreement).
On at least eight occasions during her day and a half on the stand, Duskin
repeated her fair and balanced view. She said she had been favorably impressed
by a talk she’d heard Mikuriya give in 1997 at a conference of addiction specialists,
and also by his files on nine nursing-home patients that the Medical Board
had once assigned her to review as part of a separate investigation.
There wasn’t the slightest self-critical edge to Duskin’s testimony. She didn’t
acknowledge that she had been taught nothing about cannabis —zero, zip— during
her pharmacy classes at UCSF. Nor did she reveal that during her years at Laguna
Honda patients were denied access to cannabis.
Duskin acknowledged that she has never issued an approval for a patient to
use marijuana, but she hopes that someday somebody will ask her to do so. (As
Public Information Officer for the San Francisco District Attorney, I used
to hear bitter complaints from Laguna Honda residents who had been punished
for copping a smoke on the grounds. If only I’d known, I could have turned
them on to Laura Duskin!)
Lying yes, swearing no
The prosecution called only one other witness, Steve Gossett, a deputy sheriff
who heads Sonoma County’s marijuana investigations unit and is known as a zealous
drug warrior. Gossett testified that he had visited Mikuriya at an office in
Oakland in January ’03 and obtained a letter of approval by claiming to suffer
from stress, insomnia, and shoulder pain that had kept him from holding a job
for several years. The stress, Gossett said he’d told Mikuriya, was exacerbated
by a pending marijuana possession case (54 grams).
Gossett testified that he’d learned from a woman named Cathy Dobshinsky (who
had been busted for cultivation along with her husband) that they had arranged
to get their letters of approval updated at an office in Oakland “by simply
paying 200 dollars cash and providing a valid California drivers license or
medical card.”
Gossett said the only reason he’d visited that Oakland office was in connecton
with the Dobshinsky case, i.e., he had not targeted Dr. Mikuriya. But his cover
story was concocted as if to confirm the thing about Mikuriya the Drug Warriors
resent most of all: he even issues approvals to citizens who are facing charges.
Gossett claimed that his reference to years of unemployment was meant as a
hint to the doctor that he was a drug dealer!
“I lied on a lot of issues and I told the truth on a lot of issues...
It’s hard to remember lies.” —Detective Gossett
In the course of testifying about the fake history he had provided
to Mikuriya, Gossett said “I lied on a lot of issues and I told the
truth on a lot of issues... It’s hard to remember lies.”
Which caused someone in the vicinity of the defense table to mutter “God damn!”
Which caused Gossett to stop talking and look pained. When asked by the judge
to continue, Gossett said somberly, “Somebody just took the Lord’s name in
vain.” After a few beats he gathered himself and resumed his recitation of
the non-facts.
Denney for the Defense
On Friday, Sept. 5 the defense called its expert, Philip Denney, MD, an experienced
family practitioner who, starting in 1999, had specialized in seeing cannabis
patients.
Denney determined that Mikuriya had elicited enough information
to justify approval of continued cannabis use.
Denney said he’d reviewed all the relevant files and determined that
Mikuriya had, in each case, elicited enough information to justify
approval of continued cannabis use. (All the patients, including Gossett,
told Mikuriya that they had been self-medicating prior to seeking his
approval.)
Philip A. Denney, MD, testified that in a "medical
cannabis consultation practice" such as Mikuriya's, "patients
are seeking the answer to one specific question: 'Do I have
a medical condition for which cannabis might be a useful treatment?'" |
Denney defined Mikuriya’s as a “medical cannabis consultation practice” in
which “patients are seeking the answer to one specific question: ‘Do I have
a medical condition for which cannabis might be a useful treatment?’”
He faulted the Board for not issuing guidelines relevant to such practices.
Denney testified that the records of at least one other Northern California
medical-cannabis consultant [Dr. Marian Fry] had been seized by government
agents, and that the threat of confiscation was “a good reason for noting the
minimum amount necessary” on patients’ charts. Denney said he was “scared to
death” by the prospect of reprisals from law enforcement as a result of his
support for Mikuriya.
But he exuded confidence intellectually. He said he kept up with developments
in the field of cannabis therapeutics, and had monitored its use by some
7,500 patients. Denney explained that the cannabis plant contains active
ingredients
other than THC, and that Duskin’s definitions of Marinol as “synthetic marijuana” and “a
pharmaceutical form of marijuana” were inaccurate. He said that the Medical
Board’s classification of cannabis as a “dangerous drug” was “scientifically
invalid.”
Legal Aid
Mikuriya got indispensable help from John Fleer, the lawyer provided by his
malpractice carrier, Norcal. (Doctors are covered for up to $25,000 worth
of dealings with the Medical Board as part of the standard policy). Over
the years, Fleer had seen numerous cases in which California doctors did
not provide adequate care, came on to patients, defrauded them, and otherwise
committed violations the Medical Board has every reason to prosecute. Fleer
continued defending Mikuriya after his reimbursement from Norcal ran out
because his review of the files and discussions with his client had convinced
him that Mikuriya been unfairly targeted.
Bill Simpich handled the cross-examination of Officer Gossett for the defense.
Susan Lea questioned the nine patients who appeared for the defense to refute
the allegation that Mikuriya had provided substandard care.
Patients’ Testimony
Each patient who testified described Mikuriya as a thorough, empathetic, and
helpful consultant who never passed himself off as a primary care provider.
Each confirmed that s/he had been self-medicating with cannabis before seeking
Mikuriya’s approval to do so.
• First to testify was D.K., a middle-aged woman from Humboldt County who walked
and spoke slowly and with obvious effort. At 21 she’d suffered a stroke brought
on by the combination of smoking cigarettes and taking birth-control pills. (“The
pill” was originally approved by the FDA in a dosage many orders of magnitude
greater than required for efficacy. A safer formulation was introduced quickly
in the U.S., less quickly in South America.)
D.K.’s enunciation may not have been crisp, but what she had to say was eloquent. “None
of you have ever had a cerebral hemorrhage. I’m always the wrong one, the one
who doesn’t get the joke... I get feeling like I’m up against a wall. A couple
of puffs and I can come back to myself, I can grip reality again.” D.K. said
she first consulted Mikuriya in June, 1998. “He had been recommended to me
as a compassionate doctor... I was totally honest with him. I had discovered
for myself that marijuana helped more than anything. And I don’t need more
and more -the same amount works!”
Mikuriya suggested that she substitute cannabis leaf for tobacco.
D.K. testified that Mikuriya had written her a prescription for a
neuropsychiatric evaluation, but it had been confiscated along with
other papers in her husband’s possession when he was busted for cultivation.
Mikuriya had also urged her to quit or reduce her cigarette smoking,
and had suggested that she substitute cannabis leaf for tobacco. “And
it worked,” D.K. reported. She mimed hand-rolling a joint and drawing
on it as she explained “You get to do the same thing with your hands,
and with your mouth...”
Assistant AG Simon asked, on cross-examination, if D.K. had obtained from Mikuriya
a second prescription for a neuropsychiatric evaluation. D.K. replied as if
Simon was the slow one and had missed the key point: “It got taken by the cops
when they took our marijuana!”
D.K. also testified that she’d had four follow-up visits with Mikuriya over
the years, and that he’d billed her on a sliding scale.
Prior to the next patient’s swearing in, Judge Lew commented that
he’d never had a case in which patients’s names had been kept from
him. Simon said, “We often have cases where patients names aren’t used
-but of course they never testify.” Which shows how far removed from
reality the Medical Board’s procedures have become. Why shouldn’t patients
be testifying about mistreatment by physicians? The Mikuriya case is
very unusual in that no patients contend they were victimized. Quite
the contrary -the alleged victims are coming forward to say “Thank
you, doctor.”
Other doctors had given her “medicines that didn’t help. They
put me out and deprived me of feeling in control.”
• D.H., another middle-aged woman who didn’t look as if her life had
been a bed of roses, testified that she’d found on her own that cannabis
provided relief for severe itching and stress headaches “so bad I can’t
even function.” Tests couldn’t determine the causes of her problems.
Other doctors had given her “medicines that didn’t help. They put me
out and deprived me of feeling in control.” She’d brought Mikuriya
records from her previous doctors and told him that when she smoked
cannabis, “the itching is less and I don’t go to sleep with headaches.” Mikuriya
gave her an approval for cannabis and taught her a method of rolling
the shoulders to reduce headache-inducing tension. She said she couldn’t
see him again “money-wise.”
On cross, Simon asked D.H., “Did you ask Dr. Mikuriya if there was anything
you should do about the itching?” -ignoring the woman’s testimony that cannabis
had been an effective treatment.
The prosecution hoped to show that Mikuriya provided substandard care by not
pushing the available corporate products. It so happens that California doctors
who are monitoring their patients’s cannabis use are hearing reports of efficacy
in the treatment of pruritis (itching)!
Because the cannabis specialists are collecting data to which
the medical establishment has been unreceptive, it is the establish-ment
doctors who are, in many instances, providing outdated, sub-standard
care.
Because the cannabis specialists are collecting data to which the
medical establishment has been unreceptive, it is the establishment
doctors who are, in many instances, providing outdated, substandard
care. The Mikuriya case takes us through the looking glass.
• R.B. a 30-something man with black hair and Buddy Holly specs, had
been incapacitated by nausea, vomiting and dizziness. His Kaiser doctor
conducted tests and diagnosed severe acid reflux, but couldn’t come
up with a cause or a cure. R.B. testified, “I lost my job because I
was sick all the time, and then I lost my health insurance because
I was unemployed... I spent a lot of time just rolled in a ball...
I was ready to off myself.”
“When you call Kaiser, a nurse takes your info and they call you
back and you pick up some medicines,” said R.B.
He first sensed the medical potential of marijuana after using it
socially. He learned more via the Internet, he said, but was concerned
about its addictive potential. Mikuriya spent more time with him than
any doctor he’d seen. “When you call Kaiser, a nurse takes your info
and they call you back and you pick up some medicines,” said R.B.,
accurately describing the REAL standard of care provided by the medical
establishment.
• E.K., a middle-aged Christian Scientist, listed his problems as
insomnia, hypertension, and back pain when he saw Mikuriya in February,
1997. Except for the Army doctors who’d declared him 4F, he hadn’t
visited a doctor since childhood. He had self-medicated with cannabis
for years. He’d sought a letter of approval from Mikuriya so that he
could ingest THC without violating the terms of probation. E.K. (who
also has cognitive problems) said Mikuriya had spent an entire morning
with him and wound up prescribing Marinol.
Assistant A.G. Larry Mercer tried to imply that because E.K. had no other doctor,
Mikuriya was his primary-care physician. E.K. explained that it was his choice
not to see doctors, and he only consulted Mikuriya to legalize his use of THC.
Mercer asked if E.K. ever tested his blood sugar “by pricking your finger.” E.K.
looked confused. “Did you ever prick your finger to measure your blood sugar?” Mercer
repeated. E.K. looked at the red-faced prosecutor carefully and asked, “Are
you a doctor?”
• Next came R.H., your basic American alcoholic working man in his
60s, broken down physically and beyond fear. In 1997 R.H. was on probation —for
cultivating three plants!— and couldn’t sleep. “I must have slept 100
hours in those eight months,” is how he put it. “Nothin’ worked. Cannabis
worked. It ain’t no miracle but it sure helps. It just makes things
a little better and I can sleep at night.”
On cross-examination Mercer inquired about Mikuriya’s billing practices. R.H.
testified that he paid $120 on his initial visit but follow-ups had been free.
“What are you doing to this guy, anyway?” R.H. asked Mercer, whose face reddened. “He
helped me! And you’re trying to screw him!!! Even my regular doctor at Kaiser
told me to smoke as much weed as I wanted, off the record. He wouldn’t give me
a letter because he didn’t have enough guts!”
Mikuriya had noted on R.H.’s chart that he drank 8 to 10 cups of coffee a day.
Did Mikuriya approve of that, Mercer probed? “He told me I should stop, but
I didn’t,” said R.H., non-compliant to the end.
• J.C., a woman in her early 20s, had been severely anorexic since
childhood -a response to sexual abuse by a relative, she testified.
She was throwing up five, six, seven times a day. “One time I fell
in the shower and couldn’t get up, I was too weak.” Her obstetrician
advised that if she didn’t eat, the baby wouldn’t live and she might
not either. She was prescribed antidepressants. She discovered on her
own that marijuana made food palatable and enabled her to keep it down.
She informed her primary-care physician who, J.C. said, “was so scared
of the law, the cops, and the medical board” that he wouldn’t write
her a letter of approval. Only Mikuriya, whom she consulted in December
1998, was “willing to make me legal.”
“The saddest part is that we have to be paraded out like this
and have our private lives exposed.”
J.C.’s testimony evoked tears from a spectator who whispered, “The
saddest part is that we have to be paraded out like this and have our
private lives exposed.”
J.C. had brought with her an inch-thick stack of medical records, which she
said Mikuriya reviewed when she consulted him. The defense also called J.C.’s
mother, whose testimony about harassing visits from the local cops was cut
short by prosecution objections on grounds of relevancy. Mercer had a mantra: “The
question is what Dr. Mikuriya did, not what law enforcement did.”
Also accompanying J.C. were her husband and their healthy-looking
four-year old boy. The Medical Board had been keen to name J.C. in
the Accusation because she was pregnant and a minor when Mikuriya saw
her.
There was a moment of levity when the little boy’s handheld computer game beeped.
Judge Lew looked sternly at Mikuriya, whose cell phone had gone off twice during
the course of the proceedings. “It was the Gameboy,” said Dr. Tod, swiveling
to point at the guilty little towhead.
• S.F. was also a minor when she saw Mikuriya in 1999. From the age
of 12 she had suffered from migraine headaches. She first smoked mj
with some girlfriends when she was 13, and soon associated it with
relief from migraines.
“Why should I spend time in juvenile hall if I’m not really a
criminal?”
She’d had an abortion at 15, after which the migraines and her menstrual
cramps seemed more severe. Marijuana provided relief. S.F.’s father,
who had raised her after her mom split when she was five, was also
a migraine sufferer and had used marijuana to reduce the pain. When
she decided to seek an approval from Mikuriya -reasoning, “Why should
I spend time in juvenile hall if I’m not really a criminal?”- her father
accompanied her.
• K.B. looked like a rugby player -a big, well-muscled man in his
40s with long blond hair. He’d consulted Mikuriya in August ’98 after
his back was injured in a car crash. He’d brought documentation of
his degenerative disk disease (narrowing of space between L4 and L5)
and reported that he couldn’t sleep when he didn’t have cannabis because
his legs would “jump.” K.B. said he could feel the muscles seizing
up and going into spasm.
Another doctor had prescribed Valium which K.B. took only once; he hated the
effect. “I don’t really believe in taking narcotics,” he testified.
K.B. had read extensively on the topic of cannabis as medicine, including the
voluminous Institute of Medicine Report. Why had he consulted Mikuriya? “He
was the world’s expert, so why not go to the best?” On cross it emerged that
Mikuriya had provided four follow-up consultations, and they were all face-to-face.
• F.K. a disabled 66-year-old Navy vet, testified that he discovered
the medicinal effects of cannabis in the early 1970s. “It relieved
my back pain and allowed me to continue my dry wall work.” He later
used it to control a tendency to binge on alcohol. After Prop 215 passed,
F.K. asked for a letter of recommendation from a Veterans Administration
hospital doctor, who told him to consult Dr. Tod Mikuriya... F.K. was
the last patient called by the defense, and his cross examination —after
it was established that F.K. paid on a sliding scale— was Mercerfully
short. It had not been an easy task trying to trip up and discredit
and find holes in the stories of these people who described their encounters
with Mikuriya in such consistent yet individual terms.
Mikuriya’s Testimony
Mikuriya took the stand on Sept. 9, the last of five days that had been set
aside for the hearing. Proceedings were broken off and resumed Sept. 24.
Guided by questions from Fleer, Mikuriya addressed every point raised by
Laura Duskin’s critique of his files. She had found an “extreme departure
from the standard of care” every time Mikuriya issued an approval letter
stating that a patient was under his “supervision and care” for the given
condi-tion(s). Mikuriya said he’d lifted the phrase verbatim from a California
Medical Association advisory letter sent to doctors after Prop 215 changed
the law.
The exchanges took on a pattern.
Mikuriya was cross-examined by Mercer. The exchanges took on a pattern. Had
Mikuriya taken Patient A’s blood pressure? No. Had he checked Patient B’s right-shoulder
range of motion? No... Occasionally Mikuriya would throw in “That’s beyond
the scope of the consultation.” Or, “My role is to establish whether he had
a condition that would qualify him to use cannabis under Health & Safety
Code 11362.5.”
Before Mikuriya stepped down Administrative Law Judge Jonathan Lew asked: “If
there were a finding that your practice standards should be modified, would
you be willing to do so?”
Mikuriya said “Absolutely.” He has been urging since 1997 that the Medical
Board issue guidelines for practices such as his. His lawyers contend that
the Medical Board made an illegal leap in applying statutes that pertain specifically
to “prescribing... dangerous drugs” to a physician approving a patient’s use
of cannabis.
“Repeted Gross Negligence”
In late January 2004 Judge Lew issued his decision —promptly ratified by the
Medical Board— that Mikuriya had committed “gross negligence” by repeatedly “violating
the accepted standard of care.” Lew relied, as had Laura Duskin, on the authority
of a policy statement issued by the Medical Board in its January 1997 Action
Report. It stated:
“While the status of marijuana as a Schedule I drug means that no objective standard
exists for evaluating the medical rationale for its use, there are certain standards
that always apply to a physician’s practice that may be applied. In this area,
the Board would expect that any physician who recommends the use of marijuana
by a patient should have arrived at that decision in accordance with accepted
standards of medical responsibility i.e., history and physical examination of
the patient; development of a treatment plan with objectives; provision of informed
consent, including discussion of side effects; periodic review of the treatment’s
efficacy and, of critical importance especially during this time of uncertainty,
proper record keeping that supports the decision to recommend the use of marijuana.”
Mikuriya had objected to this guideline from the time the Board issued it.
In 1998 he and nine like-minded colleagues formed the California Cannabis Research
Medical Group (CCRMG) and drafted their own “minimum practice standards” based
on the unique real-world situation they were facing -tremendous pent-up demand
by Californians who had been self-medicating safely and effectively with cannabis
but who were unwilling to seek or unable to get approval from their regular
doctors.
In March 2003 Mikuriya and Frank Lucido formally asked the California Medical
Association to adopt the CCRMG minimum practice standards and to lobby the
Medical Board to follow suit. (The Board’s 1997 “statement” had been drafted
with CMA input; but since then the CMA had abandoned its opposition to California’s
medical marijuana law.)
At its 2003 annual meeting the CMA adopted a modified version of the CCRMG
minimum practice standards, and delegated its lawyers to work with the Medical
Board on revising its 1997 statement. After several meetings of a joint CMA-Medical
Board task force, an agreement was reached; but at the 11th hour, Deputy AGs
Mercer and Simon joined the task force and the agreement fell apart.
At the Board’s Spring 2004 meeting, when the wording of the statement on medical
marijuana that would appear in the July Action Report was approved, the CMA
representatives refused to sign on.
Mikuriya Will Appeal
Mikuriya supporter John Entwistle, using the web, uncovered Judge Jonathan
Lew’s association with PowerHouse Ministries, a Christian outreach group that
works with prisoners and their families. The Powerhouse line on marijuana —that
it’s strongly addictive— is contradictory to Mikuriya’s. According to the PH
website, “Nobody likes slavery. And no one wants to be a slave. Yet, everyday
in our community people ‘awake’ to find that they have become enslaved to some
substance. For some it’s marijuana, for others crank or alcohol or all three!...
For people who want to get their lives straight again, Powerhouse offers a
series of classes about substance addiction called Turning Point. These classes
teach you about yourself and your addictions. They offer the only real hope
for mankind —a changed life because of meeting Jesus Christ.”
Susan Lea tried but failed to get a rehearing based on Judge Lew’s concealed
bias.
Mikuriya has hired an appeals specialist, Charles Bond, to challenge the Board’s
verdict in Superior Court. Bond says there are ample grounds. All the Board’s
evidence against Mikuriya was produced by subpoenaeing patients’ files. The
appellate court’s ruling in the Bearman case has been published and can be
cited as precedent. Common sense suggests that it should apply to Mikuriya,
who initially refused to turn over his patients’ records to the Board, and
did so only after they were subpoenaed. If the evidence produced by those subpoenas
was inadmissible, there would have been no case against Mikuriya.
Meanwhile Mikuriya has resumed practice in a leased “suite” on
the second floor of a mall on San Pablo Ave., conveniently located
above Trader Joe’s.
Meanwhile Mikuriya has resumed practice in a leased “suite” on the
second floor of a mall on San Pablo Ave. —513 El Cerrito Plaza— conveniently
located above Trader Joe’s. Although his leg is in a cast, he’s seeing
patients two or three days a week and trying to stay on the sunny side. “The
new office is a short walk from the BART station and the bus stop on
San Pablo, and right off the freeway,” he says. The phone number is
510-525-1278.
Being monitored by a colleague was one aspect of his punishment that Mikuriya
considered tolerable because Frank Lucido had agreed to be the monitor. (Monitoring
a physician entails reviewing his/her charts every month and discussing procedures
as needed.)
The Medical Board enforcement officer assigned to supervise Mikuriya’s probation,
Craig Leader, initially raised no objection to Lucido. But in mid-July Leader
phoned Mikuriya to say that the arrangement was unsatisfactory. Mikuriya says
he asked why and was told that Lucido “would be biased.” [Frank Lucido is a
physician in good standing with the Medical Board, has offices in Berkeley,
and experience with cannabis-using patients. Anybody who knows him knows that
he’s conscientious and would take his responsibilities as a monitor seriously.]
Mikuriya says, “I thought it odd that after telling me Frank Lucido would be
biased, Leader said ‘Oh, and Tom Campbell says hello.’” Campbell is the Medical
Board investigator who built the case against Mikuriya.
Mikuriya told Leader he didn’t have $75,000 to cover the fine. Leader asked
for three years’ worth of financial information, which Mikuriya is reluctant
to provide. “The Medical Board has shown that they have lower standards of
confidentiality,” says the doctor.
“It is very unusual for the Board to demand payment before the
end of the probationary period,” according to Charles Bond.
“It is very unusual for the Board to demand payment before the end of the probationary
period,” according to Charles Bond. “I double-checked with other attorneys and
the California Medical Association. The Board doesn’t expect payment at the outset,” he
says. “Tod is getting special treatment.”
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.”
Mikuriya’s appeal can be filed in Superior Court either in Alameda County,
where the hearing was held, or in Sacramento County, where the Medical Board
is headquartered. A Superior Court judge will 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 [administrative law] judge did?’ It’s a trial
de novo, based on the hearing record,” Fleer explains.
In other words, the judge will read what Laura Duskin said was the proper standard
of care, and 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.
Bond, who will be handling the appeal, thinks he has two other strong arguments.
The 1997 Action Report “Statement” on which Duskin and Lew relied in deciding
that Mikuriya violated the standard of care cannot be used as the basis for
punishment, Bond says, because “it was not adopted in compliance with California’s
Administrative Practices Act. That would have required public hearings, which
were never held. The Board’s 1997 ‘Statement’ is an underground regulation,
and does not have any legal impact.”
Bond was appalled by the issuance of the revised “Statement” in July 2004. “Evidently
they don’t get it,” he says. “But a Superior Court judge will.”
Bond also plans to cite the injunction issued by U.S. District Court judge
Frank Alsup in a civil case originally filed in January, 1997, as Conant v.
McCaffrey, that bars the federal government from retaliating against doctors
who discuss cannabis as a treatment option with their patients. [AIDS specialist
Marcus Conant and co-plaintiffs had sued in response to threats made by McCaffrey
at the infamous 12/30/96 press conference.]
The Conant injunction has been upheld by the 9th Circuit Court of Appeals and
the U.S. Supreme Court refused a request by the Bush Administration to review
it. In its July Action Report statement the Board seems to minimize the protection
afforded by Conant, stating “Although it could trigger federal action, making
a recommendation in writing to the patient will not trigger action by the Medical
Board of California.”
A more accurate formulation would have been “Although it could trigger illegal
federal action, it will no longer trigger illegal action by us.”