Journal of the California Cannabis Research Medical
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 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
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'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
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
which has the final say on whether -and if so, how- to sanction Tod Mikuriya.