Dr. Mikuriya's Medicine
By Peter Gorman, AlterNet.org
November 3, 2004
The prime target of the government's campaign against physicians who recommend medical marijuana is fighting for his patients and his professional life.
In November 1996, the voters of California passed Proposition 215, the Compassionate Use Act. That law permitted patients throughout the state to use, possess and grow cannabis – and their caregivers to possess, grow and provide cannabis – on the recommendation of a physician.
One month later, in response to what the federal government saw as an erosion of cannabis prohibition in California, then-drug czar Barry McCaffrey held a press conference to discuss the new law. One of his props was a large flip-chart at the top of which was printed: "Dr. Mikuriya's Medicine." Below it was a long list of ailments for which Dr. Tod Mikuriya, a respected Berkeley, Calif. psychiatrist and co-author and medical advisor of Prop 215, was alleged to have claimed cannabis was beneficial. Along with glaucoma, cancer and AIDS were zingers like "Recovering Forgotten Memories," and "Writer's Cramp," that made the whole list suspicious.
"This isn't medicine." McCaffrey cracked. "This is Cheech and Chong medicine."
The press conference was the first salvo in the government's war against pot patients, caregivers and doctors who write medical marijuana recommendations. Chief among the targets was Mikuriya, who has written more than 7,000 such recommendations, more than 10 percent of the total number of recommendations written statewide.
More than six weeks prior to McCaffrey's nationally televised news conference, the drug czar's office convened a meeting to decide how to handle the now-legal cannabis smokers in California. At that meeting, a range of responses to Prop 215 was considered. Among them were filing a suit claiming that federal law pre-empts the state propositions; a plan to initiate federal criminal prosecution of medical marijuana users; federal support of state and local arrests and seizures based on violation of federal law; and developing a strategy for taking action against physicians.
The feds decided in favor of the latter option. The plan was spelled out during McCaffrey's Dec. 30 press conference, when HHS Secretary Donna Shalala announced that doctors who recommended marijuana risked having their federal DEA licenses to prescribe controlled drugs revoked, and worse, criminal prosecution and being excluded from Medicare.
While this tactic scared most doctors out of making such recommendations, many others saw the threat for what it was: an infringement on doctors' First Amendment right to discuss whatever they choose with a patient, as well as their ability to make reasonable medical recommendations, which might include the use of medical marijuana – something doctors had been quietly doing long before Prop 215 passed.
One of those doctors, AIDS specialist Dr. Marcus Conant, sued the federal government in January 1997 over its infringement of his right to speak freely with patients. Conant was joined by 14 other doctors and patients in the class-action lawsuit (initially Conant v. McCaffrey, and later, Conant v. Walters – John Walters, McCaffrey's successor), which resulted in an injunction against the federal government's planned course of action. The case eventually went to the Supreme Court in 2003, which held that the government could not threaten or intimidate doctors for recommending marijuana to patients. The feds were trumped.
That should have been the end of the harassment of California's physicians.
But on Oct. 28, 1997, California Attorney General Dan Lungren's office, heading by senior assistant DA John Gordnier, sent out a notice to all law enforcement personnel and county district attorneys in the state that included this request: "If your jurisdiction has received recommendations signed by either Dr. Eugene Schoenfeld or Dr. Tod Mikuriya, please notify John Gordnier."
"I don't think they knew how they were going to use the information they were collecting at that time," says Mikuriya. "They were just hoping to find something they could jump on, something illegal or patently out of line."
More of a pop celebrity, Schoenfeld, who was director of the Haight-Ashbury Free Clinic during the '60s, was known as "Dr. Hip" to his readers (Berkeley Barb) and "The Modern Rock Doc" to his listeners (KITS-FM in San Francisco).
Berkeley's answer to Harvard's Dr. Lester Grinspoon, Mikuriya, author of "Marijuana Medical Handbook: A Guide to Therapeutic Use," is one of the world's foremost authorities on the uses of medical cannabis, having spent nearly 35 years researching the subject.
While Schoenfeld kept a lower profile to stay under the radar – though he still made appearances at hemp fests and such – Mikuriya became more of a thorn in the anti-medical marijuana crusaders' side. But how could they get him?
Despite all the information that might have poured into Lundgren's office (Bill Lockyer replaced him in January 1999), nothing about Mikuriya's recommendations was out of line.
"I write a lot of recommendations because I have a lot of patients," Dr. Mikuriya says. "About 40 percent of them are recommended to me by their primary physicians who either know nothing about the benefits of medical marijuana or are too scared to write recommendations themselves. The rest were self-medicating before I ever saw them. Then there are countless others who simply know that cannabis is beneficial to their condition, whether that be depression, anxiety, post-traumatic stress and attendant inability to sleep because of recurring nightmares related to that stress or any number of other disorders."
While the vast majority of California's 38,000 physicians were too frightened to stand tall and recommend marijuana to needy patients. Mikuriya did just that. "I knew there would be heat," he says. "I don't mind. Someone's got to take it. We have a law. Medical cannabis is legal here, for god's sake!"
From Bucks County to Berkeley
Mikuriya knows about taking heat and being a target. Born in 1933 in rural Bucks County, Penn., to a Japanese father and a German mother, he was 7 years old when Japan attacked Pearl Harbor. His father wasn't sent to an internment camp like so many Japanese Americans were in California, but his family was visited by the FBI (a camera and a radio with a short wave band were confiscated).
"It was a good lesson," Mikuriya recalls. "I learned early how to be marginalized and scapegoated. My parents, two sisters and I learned what racism and prejudice looked like. We couldn't travel more than 50 miles from our home and in many places in town we were not welcome. The irony is that my father worked as a defense contractor."
Mikuriya's love affair with cannabis began by accident while he was in medical school at Temple University, when he read an unassigned chapter about it in a book in pharmacology class during his sophomore year.
"It was March 1959, and by that summer I'd read everything in the medical school library on cannabis," he says. "My curiosity wasn't something I shared with classmates. I kept my interest quiet and made it my personal obsession. But after I'd read everything I thought I'd culminate my experience and try some out. So I went to Mexico that same year and bought joints from a street dealer. I had him pick one out of the group and light it up and take some hits before I did, just to see that it wasn't poison. And once I assumed it was safe to give it a try I said goodbye and embarked on the laboratory portion of my experience."
He quickly became a voracious reader of cannabis literature and its medical uses. When the chance came a few years later to work with Humphrey Osmond – the man who coined the word "psychedelic" – he jumped at it. Mikuriya became director of the Drug Abuse Treatment Center at the New Jersey Neuropsychiatric Institute where Osmond was director of Research and Neurology in Psychiatry.
"Humphrey was an international treasure, a charming man and one of the most well-read scientists I ever met," Mikuriya says. "He pursued the idea that certain psychoactive drugs could mimic certain mental illnesses, like schizophrenia, with the hope that metabolites of those psychoactives would be diagnostic of mental illness. It was a little heady for me at the time. But he was also fun to be around. He'd have these wonderful garden parties with people like Tim Leary and the Diggers – interesting folk."
During his time at the Institute the Mikuriya began traveling to pot spots like Morocco and Nepal. His experiences in Morocco led to him write the paper "Kif in the Rif," about Morocco's traditional hashish-using community in the Rif Mountains.
In 1967, he was recruited by the U.S. government's National Institute of Health to do medical marijuana research. The job didn't last long.
"The government wasn't looking for research," Mikuriya says. "They wanted bad things found out about marijuana and I didn't find them." He pauses. "One of my most interesting assignments with the NIH was being sent to spy on communes around San Francisco and report back to the department on what kinds of pot abuse I discovered. You might look on me as a defector!"
Mikuriya, however, liked San Francisco so much that he stayed, taking a position as attending psychiatrist at the Gladman Hospital – a job he held for 21 years – and opening his private practice in Berkeley.
Bringing the Doctor Down
The California Medical Board – the agency that issues doctor's licenses and also has the power to revoke or suspend them – consists of an executive committee of doctors appointed by the governor who set policy, and an investigative branch made up entirely of career law-enforcement officers. If a complaint warrants an administrative hearing, the board is represented by the Attorney General's office. The normal course of events is to have disgruntled patients or their loved ones or other physicians make the complaints. In Mikuriya's case, none did.
In 2002, complaints were filed against him by rural police, narcotics officers and county district attorneys, resulting in a request by the medical board for the records of 44 patients. When Mikuriya refused, the records were subpoenaed. Official complaints were made regarding 17 patients and the medical board scheduled hearings for September 2003 to establish their merit. While several California doctors had been investigated by the board, none had resulted in hearings until Mikuriya's.
The prosecutors assigned to the case were Larry Mercer and Jane Zach Simon – like Gordnier, holdovers from the Lungren days. To "catch" Mikuriya, the DA's office sent an undercover narcotics officer to the Marijuana Referral Services clinic in Oakland. The officer lied to Mikuriya about a shoulder injury, stress and a sleep disorder to secure a cannabis recommendation.
"I recommended that he get physical therapy and more sleep, and that he should try using a vaporizer rather than smoking the cannabis he said he was using," says Mikuriya.
At a pre-hearing settlement conference in July 2003, Mikuriya was offered a deal that would've given him four years' probation and require him to reimburse the board $10,000 for legal fees. If he didn't settle, additional charges would be filed against him.
"One of the stipulations was that I couldn't sue them," he says. "In a pig's eye! If I'm going to have to live with a Joan of Arc model of social responsibility I'm going to be the most sour thorn in their side they've ever met." Mikuriya turned down the offer.
At his September hearing, Mikuriya was charged with negligence, incompetence and furnishing dangerous drugs without prior examination. Laura Duskin, a Kaiser HMO psychiatrist who had never recommended medical marijuana, testified that she'd reviewed the 17 patients' records (though she declined to interview the patients themselves) and concluded that Mikuriya had failed to conduct adequate physical exams, specify treatment plants, order tests and keep good records.
Nine of the 17 patients testified on Mikuriya's behalf. They all agreed that the doctor carefully reviewed their medical histories and dispensed caring advice during his 15-20-minute exams. Many were visibly sick and brought records from other doctors confirming their illnesses. All were self-medicating with cannabis when they came to see Mikuriya.
While he admitted he frequently doesn't touch patients or take their vital signs, Mikuriya said he carefully observes their physical demeanor, asks them to fill out a research questionnaire and relies heavily on their self-reported symptoms. "My job," he asserts, "is to simply ascertain whether, when presented with a set of symptoms, cannabis would or could help. Nothing more."
Mikuriya's own key witness, Dr. Philip Denney, said he, like Duskin, had reviewed the 17 patient files and found that Mikuriya's exams were more than adequate to make a decision. In fact, Mikuriya has turned down at least 3,000 people seeking medical marijuana recommendations over the years because he either felt the patients were lying about their conditions or didn't have conditions that would be helped by cannabis.
The hearing concluded after six days. In his ruling nearly five months later, Judge Lew determined Mikuriya was guilty of gross negligence for failing to properly examine his patients before recommending cannabis. "They didn't do an investigation of me, they carried out a vendetta," he rails. "An investigation would have included interviewing the patients themselves, caretakers, family members and other doctors. None of that was done."
On April 29, 2004, Mikuria began serving a five-year period of medical practice probation ordered by Judge Lew. He must pay $75,000 for the cost of his prosecution and is no longer able to see patients in his home, something he'd done for 30 years. His records are spot-checked by the California Medical Board, he is not allowed to do telephone follow-ups with patients and is required to disclose his medical-marijuana recommendations to patients' primary physicians. A second doctor has to review his patients' records at Mikuriya's expense.
Planning an Appeal
Mikuriya's down, but he's not out. He's already filed a civil suit against the officers and prosecutors involved in the medical board case against him, and he's planning to appeal Judge Lew's decision. That would have already been done but it took until late May to get the transcripts of the September hearings.
"I don't know how but I'm not going to let them get away with this," he says. "They're just criminals under the color of authority. Time and time again my patients continue to be harmed by these moral reprobates."
One of the angles of the appeal he'll pursue is that Judge Lew didn't disclose that he's a board member of the Powerhouse Ministries of Folsom, Texas. The group's website has a section on substance abuse that reads, "Nobody likes slavery. And no one wants to be a slave. Yet, every day in our community people 'awake' to find out that they have become enslaved to some substance. For some it's marijuana ..."
In his corner, Mikuriya has NorCal, his malpractice insurer who furnished an attorney for the September hearing, and the California Medical Association (CMA), which will be filing an amicus brief on the doctor's behalf. Alice Mead, an attorney who sometimes works for the CMA but said she could not speak for the organization, has compared Mikuriya and the other doctors who make the vast majority of the medical marijuana recommendations in California to the early HIV doctors.
"When the HIV epidemic had just broken out, many physicians were ignorant of HIV and fearful of HIV and they didn't want to take HIV-infected patients," observes Mead. "There were a few brave and informed physicians who did take a lot of those patients, a disproportionate number. We never said they treated too many HIV patients."
If Dr. Mikuriya goes down, the handful of doctors also putting their professional necks on the line for medical marijuana will be the next targets of the California Medical Board. And if they go down, so does medical marijuana in California.
"I can't tell you how many lives are severely disrupted and ruined by these molestations." Mikuriya says. "This is a level of atrocity with the most vulnerable sector of society being preyed upon by people who have sworn to uphold the law and protect them. Boy, if that isn't perversion!"
This story is online at: www.alternet.org/story/20407/
© 2004 Independent Media Institute. All rights reserved.
Tod H. Mikuriya, M.D.