Lawyers for Tod Mikuriya, M.D. — a psychiatrist who has lived and practiced in Berkeley since 1970 — have filed a motion to dismiss the case against him brought by the Medical Board of California (MBC).
If the motion fails, Mikuriya will spend the week of May 19 in an Oakland courtroom defending his handling of 17 cases in which medical board investigators claim he “departed from the standard of care.”
Mikuriya, 69, is a leading authority on the medicinal use of cannabis. He has edited an anthology of pre-prohibition scientific papers and reported extensively on his own clinical observations. Since Proposition 215 passed in 1996, legalizing marijuana for medical use in California, he has approved and monitored its use by more than 7,000 patients, most of them seen at ad hoc clinics arranged by cannabis clubs in rural counties.
(Many California doctors have been afraid or otherwise reluctant to approve cannabis use by patients whose conditions are not terminal. Mikuriya has been willing to approve its use to alleviate physical or emotional pain.)
The medical board is the state agency that issues doctor’s licenses and can revoke or suspend them. Its policies are voted on by physicians appointed by the governor; its day-to-day operations are conducted by investigators who are career law-enforcement officers.
Mikuriya says that not one of the board’s investigations into cases he allegedly mishandled stemmed from a complaint by a patient or a patient’s loved one.
“Nor were any of the complaints from other physicians or health care providers,” he adds. “They came from cops and sheriffs and deputy DAs in rural counties who couldn’t accept that a certain individual had the right to use marijuana. And not one of their complaints alleges harm to a patient.”
Mikuriya is represented by his longtime personal attorney, Susan Lea, and by Bill Simpich and Ben Rosenfeld — members of the team that sued the FBI on behalf of Darryl Cherney and Judi Bari. He is also represented by John Fleer, who is retained by Norcal Insurance, Mikuriya’s malpractice carrier.
“We helped him review his files, case by case,” says Fleer. “I’ve been doing this for 20 years and I have a feel for whether a doctor has a detailed understanding of a case. Mikuriya not only had understanding, he had an unusual level of sympathy for his patients … I’m afraid the board is holding him to an artificially high standard.”
The primary basis for dismissal, according to Mikuriya’s motion, is the section of state law established by Proposition 215 (Health and Safety Code section 11362.5) which reads: “Notwithstanding 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.”
Although the MBC investigation is ostensibly about departures from the standard of care, Mikuriya’s defenders say it’s really about medical-marijuana recommendations.
A letter to Mikuriya from senior investigator Thomas Campbell, dated June 28, 2002, states bluntly, “The Medical Board of California has concluded its investigation into the matter of your treatment and subsequent recommendations and approval of medical marijuana for numerous patients.”
Almost all of the patients Mikuriya sees had been self-medicating with cannabis before consulting him. He says that the 15-to-20-minute exams he conducts are sufficient to take a full history, review a patient’s medical records and prior test results, make or confirm a diagnosis, discuss various aspects of cannabis use (he routinely advocates the use of a vaporizer), and note his findings and observations. His initial interviews, he says, “are always face to face, in person, confidential and live.” Follow-ups may be via video, phone or e-mail.
“Successful doctor-patient relationships are characterized by candor and trust,” Mikuriya said. “Removing the stigma of criminality promotes candor and trust.”
The medical board charges that Mikuriya didn’t establish bona fide physician-patient relationships. “The board is seeking to hold Dr. Mikuriya to an ambiguous standard of care,” says Lea, “that doesn’t even apply to most primary care doctors and specialists, let alone doctors acting as medical consultants.”
Ironically, since the passage of Proposition 215, Mikuriya has been imploring the medical board to develop clear-cut guidelines for doctors who recommend cannabis. In February of this year he introduced a resolution urging the California Medical Association to lobby the medical board to create such guidelines.
Mikuriya’s motion to dismiss asserts that the case against him was initiated by “a coterie of federal and state law enforcement officials,” led by former Attorney General Dan Lungren and Drug Czar Barry McCaffrey. Shortly after Proposition 215 passed, Lungren instructed California police chiefs, sheriffs and district attorneys to keep arresting and prosecuting citizens for using and cultivating marijuana, and to force their doctors to testify in open court. Lungren then flew to Washington, D.C., to strategize with the drug czar and other federal officials opposed to the implementation of Proposition 215.
On Dec. 30, McCaffrey held a televised press conference at which he warned California physicians that recommending marijuana could cost them their licenses. McCaffrey displayed and ridiculed a long list of conditions for which marijuana reportedly provides relief. It was headed “Dr. Mikuriya’s (Proposition 215 Medical Advisor’s) Conditions,” and McCaffrey dismissed the whole field of medical marijuana as, “Cheech and Chong medicine.”
In response, a group of Bay Area physicians and patients, led by AIDS specialist Marcus Conant, sued the drug czar on First Amendment grounds. The plaintiffs got an injunction barring the feds from taking action against California doctors who “in the context of a bona fide physician-patient relationship, discuss, approve or recommend the medical use of marijuana.” Mikuriya’s lawyers argue that the Conant injunction “applies with equal force to other government actors, such as the complainants in this case.”
In addition to documents establishing the Lungren-McCaffrey connection, Mikuriya’s lawyers are citing an October 1997 memo from Lungren’s right-hand man, Senior Deputy Attorney General John Gordnier, requesting that district attorneys in all 58 counties notify him of any cases involving medical-marijuana recommendations by Mikuriya and one other doctor (Eugene Schoenfeld, who once upon a time wrote the Dr. Hip column for the Berkeley Barb).
Two of Gordnier’s assistants, Deputy Attorney Generals Jane Zack Simon and Larry Mercer, are slated to argue the medical board’s case against Mikuriya.
“I can’t understand why [Attorney General] Bill Lockyer would assign these two prosecutors to the case,” said Simpich. “It’s almost as if he’s granting Dan Lungren a last request from beyond the political grave.”
It remains to be seen what penalty the board would impose if the charges against Mikuriya are upheld, but patients and staff at local dispensaries are fearful.
“It seems that Dr. Mikuriya has been targeted for being knowledgeable and outspoken,” says Debby Goldsberry, director of a medical marijuana care facility on San Pablo Avenue. “Patients are afraid of losing his expert care and advice. Everybody’s wondering, ‘Who’ll be next?’”