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

Mikuriya Wraps Defense

Berkeley psychiatrist Tod Mikuriya -who has approved cannabis use by some 7,000 patients- spent a full day on the witness stand defending his handling of 17 cases as the administrative law hearing into his "practice standards" concluded Sept. 24.

The Accusation against Mikuriya was brought by the Medical Board of California, the state agency that issues physicians's licenses and can suspend or revoke them.
The Board alleges that Mikuriya failed 17 patients - not by approving their use of cannabis, which is indisputably legal under the law created by Prop 215- but by conducting cursory examinations.

Mikuriya contends that his examinations are perfectly adequate, given the finite purpose for which patients consult him. He calls the prosecution "a vengeful operation that can be traced to former Attorney General Dan Lungren and a coven of rural-county sheriffs and district attorneys who always opposed Prop 215 and resent the fact that my letters of approval have made certain citizens in their jurisdictions immune to arrest and prosecution."

Not one of the complaints investigated by the Medical Board in the Mikuriya case came from a patient. "They all came from disgruntled prosecutors and narcotics investigators," he notes.

The Prosecution

The Medical Board's expert witness, Kaiser psychiatrist Laura Duskin, MD, testified that Mikuriya made an "extreme departure from the standard of care" when he wrote on his letter of approval that patients were under his "supervision and care" for the treatment of their various conditions. This wording, said Duskin, implied ongoing responsibilities that Mikuriya did not in fact assume.

In some cases, according to Duskin, Mikuriya failed to specify a treatment plan or arrange proper follow-up. Duskin acknowledged that she had not interviewed any of the 17 patients. She said her reading of Mikuriya's files enabled her to adduce his lapses because "from day one in medical school they teach us, 'If you didn't write it down, it didn't happen.'"

The prosecution also called a Sonoma County narcotics investigator named Steve Gossett who 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.

The Medical Board has been represented by Larry Mercer and Jane Simon, the same Assistants AGs whom Lungren had assigned to prosecute Dennis Peron. They had threatened to add the charge involving Gossett if Mikuriya refused their settlement offer. He did, and they made good on the threat. Such is the "standard of care" in the legal world.

 

The Defense

The defense's expert, Philip Denney, MD, an experienced family practitioner from Loomis, 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 said that Mikuriya's practice should not be evaluated by the same standards as a conventional doctor's. "Patients come to a medical cannabis consultant 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.

Nine of the patients who allegedly received substandard care from Mikuriya testified that he'd been a thorough, empathetic, and helpful consultant whom they never mistook for a primary-care provider. Each confirmed that s/he had been self-medicating with cannabis before seeking Mikuriya's approval to do so.

Mikuriya himself took the stand for the final phase of the six-day hearing. He was led by attorney John Fleer on a four-hour, patient-by-patient refutation of Laura Duskin's criticisms.

Then came an even longer cross-examination 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 him a single, poignant question: "If there were a finding that your practice standards should be modified, would you be willing to do so?"

Lew will now be briefed by the lawyers -a six-week process- and take
another month or so to make his "recommended decision" to the Medical Board.
which has the final say on whether -and if so, how- to sanction Tod Mikuriya.

 

 

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.