Journal of the California Cannabis Research Medical
Mikuriya Accused in their names, but...
Medical Board "Expert" Didn't Interview Patients
The Medical Board of California's prosecution of Tod Mikuriya, MD,
began Sept. 3 with the testimony of an expert witness, Kaiser psychiatrist
Laura Duskin. The scene was a fluorescent hearing room at the state
office building in Oakland, presided over by Administrative Law Judge
Jonathan Lew, a trim, soft-spoken man with a businesslike air.
Duskin said she had read 16 of Mikuriya's patients' records (which
had been subpoenaed by the MBC 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."
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.
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.
Laura Duskin 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
asserted as the Assistant AGs -two remnants from the Lungren regime-
nodded 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 c. 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
Duskin said 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 SFDA 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!)
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 (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 on earlier this year was to follow up on Cathy's
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!
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.
If you ever wondered how certain law enforcers can justify arresting,
prosecuting, and jailing their fellow citizens on marijuana charges,
there's your basic answer... religion.
When this case began, the AG's office claimed that Tod had no right to
recommend marijuana to one patient [W.H.] who had MS and was virtually
a quadripalegic, had an ashtray full of roaches and his request was
seconded by his conservator.
This position was so ridiculous, that the hardcore anti-215
crowd in the AG's office was forced to round up all the reports
filed by DAs and cops that were "sore losers" in
215 cases and sought the records of the victorious patients...
They subsequently realized that they might actually lose all
16 cases against these 16 patients. So, in a frantic last attempt,
they have brought in Sonoma County sheriff Steve Gossett to
try to claim that Tod is wrapped up in a fraudulent scheme
to enable unqualified patients to obtain marijuana.
Gossett's an old hand at this stunt. He was the lead witness
claiming that Ken Hayes and Mike Foley were acting in bad faith,
only to have the Sonoma County jury issue a landmark verdict
justifying possession of 900 plants and a pound and a half
of hashish in the medical context. Gossett's response was to
go to the DEA and convince them to bring federal charges and
then bragged that he was the one who sent "Ken packing
to Canada." Same situation when he alleged bad faith in
Alan MacFarlane's criminal trial -and again, after the jury
acquitted Alan, he went to the DEA and convinced them to go
On Friday, Sept. 5 the defense called its expert, Philip Denney, MD,
an experienced family practitioner from Loomis, CA. Denney said he'd
reviewed the 17 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.)
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."
Add ironies: In 2001 Laura Duskin made a poignant observation, quoted
by Bruce Mirken in the Bay Guardian, about the costly, ineffective
treatment of far-gone addicts andalcoholics in San Francisco: "The
Community Health Network is not savvy at all about figuring out how
to serve these complex patients," said Duskin. " They don't
ask their frontline providers." The Mikuriya defense can be summarized
in a paraphrase: "The Medical Board is not savvy at all about
doctors who serve medical cannabis patients. They don't ask the frontline
Mikuriya has gotten indispensable help from John Fleer, the lawyer
provided by his malpractice carrier, Norcal. (Doctors are covered for
dealings with the Medical Board as part of the standard policy). Over
the years, Fleer has 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 has thrown himself into defending Mikuriya precisely
because his review of the files and discussions with Mikuriya convinced
him that he's been unfairly targeted.
Herb Caen item: The hearing is being held in a building named in honor
of an Oakland pol named Elihu Harris. One morning your correspondent
overheard a 50ish white woman at a pay phone in the lobby say, "I'll
be waiting on Clay Street, in front of the EmmyLou Harris state office