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Summer 2003
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

9/10

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 cannabis.
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.

Bill Simpich:
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 federal.

 

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 providers..."

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 building."

 

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.