Summer 2003
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
|
Medical Board Won’t Drop
Case Against Mikuriya
7/11 was not a lucky day for California cannabis consumers.
The morning papers described a Bush Administration challenge to the
ruling (in Conant v. McCaffrey) that confirmed the right of doctors
to discuss marijuana with their patients.
San Francisco AIDS specialist Marcus Conant, MD, and co-plaintiffs had sought
to confirm their rights in January, 1997, after Bill Clinton’s Drug Czar threatened
to revoke the prescription-writing licenses of any California doctors who approved
cannabis use. Federal Judge Fern Smith (a Reagan appointee!) temporarily enjoined
the feds (on First Amendment grounds!) from carrying out or repeating this
threat. Then Judge William Alsup made the injunction permanent and the 9th
Circuit Court of Appeals upheld his ruling. Now Bush’s lawyers are asking the
U.S. Supreme Court to overturn it.
Also on July 11, Tod H. Mikuriya, MD, appeared in an Oakland courtroom
trying to fend off an attempt by the state Medical Board to suspend
or revoke his license. Mikuriya is accused of violating the Board’s “standard
of care” in 17 cases (although the Board has yet to issue practice
standards pertaining to the recommendation and approval of cannabis
use).
Mikuriya, 70, has devoted a long, successful career to the study —clinical
and scholarly— of cannabis. In 1967 he was the first director of non-classified
marijuana research for the National Institute of Mental Health. In
1969 he published a case study of a problem drinker who successfully
substituted cannabis for alcohol. He has resided and practiced in Berkeley,
and consulted at local hospitals, since 1970. In 1972 Miku-riya published
a collection of papers on cannabis from the pre-prohibition medical
literature, keeping alive the flame of knowledge.
A Versatile Drug
When Dennis Peron launched the San Francisco Cannabis Buyers Club
in the early 1990s, he told Mikuriya “There are people with diseases
I never heard of.” Mikuriya signed on as medical consultant and began
interviewing club members. He determined that cannabis was being used
to treat a wide range of conditions, including post-traumatic arthritis,
rheumatoid and osteoarthritis, fibromyalgia, seizure disorders, degenerative
diseases of the central and peripheral nervous systems, cerebral palsy,
multiple sclerosis, post-viral encephalopathy and neuropathies, post-injury
pain, glaucoma, Meniere’s disease, migraine, gastritis, ulcers, Crohn’s
disease, colitis (spastic and ulcerative), cystitis, thyroiditis, scleroderma,
lupus, premenstrual syndrome, intractable itching, motion sickness,
sinusitis, allergic rhinitis... the list goes on and on.
Mikuriya generalized in a 1995 interview: “Cannabis appears to be
a unique immunomodulator analgesic that is useful in the control of
automimmune inflammatory diseases throughout the body,”
Mikuriya played an advisory role to Peron and the co-authors of Prop
215. He was one of the few MDs to endorse Prop 215 in ’96 (when the
California Medical Association wouldn’t) and his quotes added credibility
to the Yes-on-215 campaign literature. The Drug Warriors came to see
Mikuriya —correctly— as an indispensable figure in the medical marijuana
movement.
Almost immediately after 215 passed, Attorney General Dan Lungren,
who had led the opposition campaign, told an “emergency all-zones meeting” of
California police chiefs, sheriffs, and district attorneys to ignore
doctors’ letters of approval and to keep arresting and prosecuting
citizens for marijuana possession and cultivation. Lungren’s objective
was to force doctors to testify in open court in support of every cannabis
approval (wasting their time, costing them money, exposing them to
reprisals from the feds and the state medical board). Lungren’s top
assistant, John Gordnier, subsequently sent out a memo to the DAs asking
to be notified of any cases in which Mikuriya testified for the defense.
Lungren flew to Washington in mid-December 1996 to help the feds plan
their opposition to California’s new law -a treacherous thing for California’s
top law enforcer to do. Lungren met with DEA Administrator Thomas Constantine
and top aides to the Drug Czar and the Attorney General. On Dec. 30,
1996, Gen. McCaffrey -flanked by Reno, HEW Secretary Donna Shalala,
and Alan Leshner of the National Institute on Drug Abuse- held the
infamous press conference at which they threatened California doctors.
McCaffrey pointed to a large chart headed “Dr. Mikuriya’s (Prop 215
Medical Advisor) List of Medical Conditions” that included a misspelling
(“migrane”) and a crude falsification (“recovered memories”). McCaffrey
ridiculed the range of conditions for which Mikuriya supposedly would
recommend cannabis. “This isn’t medicine,” McCaffrey declared, “this
is a Cheech and Chong show.” He bluntly threatened: “a practitioner’s
action of recommending [marijuana]... will lead to administrative action
by the DEA to revoke the practitioner’s registration.” And it might,
yet, despite Judges Smith, Alsup, the 9th Circuit, and the former First
Amendment.
The Case Against THM
The Medical Board of California’s case against Mikuriya involves no
complaints from patients or caregivers. All the complaints that MBC
Investigators pursued came from district attorneys, police, and sheriffs
who had failed to put certain citizens in jail because the citizens
had Mikuriya’s approval to use and/or cultivate cannabis.
According to attorney Bill Simpich, “The Conant ruling, which is still
law, and applies to the states, prevents any entity from initiating
any investigation solely on the ground that a doctor recommends marijuana
to a patient based on a sincere medical judgment. The Medical Board
didn’t care about Dr. Mikuriya’s judgment, they used the knowledge
of his recommendations -obtained from the cops and DAs- to start the
investigation of 46 patients whose records they subpoenaed.”
Mikuriya has approved cannabis use by some 7,300 patients since Prop
215 passed. He says that “99.9 percent” of his patients had been self-medicating
successfully with cannabis prior to consulting him. They were treating
chronic pain (27%), spasticity (26%), and mental disorders (26%), and
using cannabis as a substitute for alcohol and to induce appetite.
“It is remarkable how there have been no reports of adverse interactions
with any other medications,” says Mikuriya. “ There is no comparing
the safety of cannabis to any other medication available.”
drugs.”
The MBC accusation against Mikuriya rests on two definitions in the
state’s Business & Professions Code. “Unprofessional conduct” is
defined as “Prescribing, dispensing, or furnishing dangerous drugs...
without a good faith prior examination and medical indication...”
And “dangerous drug” is defined as “any drug unsafe for self-use,
except veterinary drugs that are labeled as such, and includes... any
drug that bears the legend: ‘Caution: federal law prohibits dispensing
without prescription,’ ‘Rx only,’ or words of similar import.”
Mikuriya’s lawyers contend that the Medical Board is making an illegal
leap in applying statutes that pertain specifically to prescribing
dangerous drugs to a doctor approving cannabis. They say it’s the Board’s
fault, not Mikuriya’s, that requirements for physicians’ approving
cannabis use have not been specified in the almost seven years since
California voters passed the medical marijuana law.
Mikuriya’s lawyers also cite the “absolute immunity” provided by Prop
215: “Not withstanding any other provision of law, no physician in
this state shall be punished, or denied any right or privilege, for
having recommended marijuana to a patient for medical purposes.”
According to Mikuriya, who was nearby at the creation, “The authors
of Prop 215 put in this immunity clause precisely because they anticipated
what has happened: a witch hunt aimed at doctors by law enforcement
officials who resent limits being put on their power to punish.” Mikuriya
says he’s willing to abide by practice standards, and in fact has drafted
and proposed to the California Medical Association a set of requirements
for physicians who consult with patients about cannabis use.
The 7/11 hearing was conducted by Administrative Law Judge Jonathan
Lew and attended by some 30 Mikuriya supporters, including three other
Bay Area physicians. (It was preceded by an hour-long, behind-closed-doors
settlement conference at which Mikuriya was offered probation with
conditions he considered unacceptable.)
Administrative law judges don’t make final rulings, they make “recommended
decisions” to the government agencies that employ them, which the agencies
can then adopt, reject, or revise. If Lew allows the case against Mikuriya
to go forward, he will conduct a hearing on the facts of the 17 disputed
cases. That hearing, at which Mikuriya is prepared to defend his approach,
file by file, is scheduled to begin on Sept. 3
If Lew decides that the case should be dropped, the Medical Board
could pursue it nevertheless by asking a Superior Court judge to order
or conduct a hearing on the facts.
—Fred Gardner