Witch-Hunt Victim or Shoddy Doc? 

Dr. Tod Mikuriya believes the state is out to get him for prescribing medical pot. Critics say it's not that simple.

Dr. Tod Mikuriya is a true believer. He views his medical practice as a platform from which to help reestablish the medicinal status marijuana enjoyed before the reefer madness of the late 1930s. "It had been available to clinicians for one hundred years until it was taken off the market in 1938," the wide-eyed Mikuriya said in a recent interview. "I'm fighting to restore cannabis."

But Mikuriya isn't just burnishing the drug's reputation; he's actively recommending it to dozens of patients each week, and using it himself. Dr. Tod, as he is known by his patients, has recommended cannabis more than ten thousand times since California voters approved Proposition 215 in 1996. That makes him one of the state's leading advocates of medical marijuana.

Mikuriya claims that because of his prominent role in the medical pot scene, investigators from the California Medical Board conspired to take away his medical license. The doctor and his lawyers say that the board's enforcement action directly contradicted the passage in Proposition 215 that states: "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."

But the state attorneys who prosecuted Mikuriya counter that the case against Dr. Tod did not really concern marijuana, but whether he had applied the appropriate standards of patient care.

The key question in the case boils down to how rigorous an examination doctors must perform when recommending marijuana to a patient. State investigators have said they began investigating Mikuriya because they thought he was recommending pot with little more than drive-by consultations. And once their investigation was done, they said they had a stash of proof that Dr. Tod had repeatedly failed to thoroughly examine patients before advising them to toke up.

The 71-year-old Berkeley resident has long been an outspoken proponent of medipot. In 1967, he was a consulting psychiatrist in charge of marijuana research at the National Institute of Mental Health Center for Narcotics and Drug Abuse Studies. He has written numerous articles on the effects of cannabis, worked with San Francisco medical pot guru Dennis Peron, and founded the California Cannabis Research Medical Group. "It never ceases to amaze me the broad range of ailments that are helped by cannabis -- chronic conditions, physical or psychological," he said.

All this advocacy has given Mikuriya a certain notoriety. In late 1996, he was singled out by federal drug czar Barry McCaffrey during a national TV appearance announcing that doctors risked losing their federal licenses to prescribe drugs if they recommended marijuana following passage of Prop. 215. The doctor believes that sometime after that warning, state law enforcement officials who sided with McCaffrey actively commenced a witch hunt against him. What better way for opponents to eviscerate California's groundbreaking medical marijuana law, he asked, than to make life miserable for the small handful of doctors who most often suggest pot to their patients? Mikuriya refers to some of these antagonists as "the forces of darkness."

Records show that state investigators began focusing on Mikuriya sometime in the late 1990s. They suspected that he had recommended pot a little too casually in the case of a 58-year-old Napa County quadriplegic with advanced multiple sclerosis. Mikuriya later testified that the bedridden patient whom he saw for five minutes in November 1998 was already using pot and that his conservator said he was benefiting from it.

To build a case against Mikuriya, medical board investigators began working with law enforcement officials from around the state. Cops and prosecutors from rural counties appeared most eager to help, producing the names of about fifty people who had been arrested or investigated for marijuana use and had obtained pot after receiving a recommendation from Mikuriya. Just two came from the Bay Area -- both from Napa County. By contrast, nine came from El Dorado County, ten from Tehama County, and eleven from Nevada County.

Medical board investigators wrote to each of the patients, asking them to release their private medical records. The vast majority did not respond. Working in concert with the California Attorney General's Office, investigators then subpoenaed Mikuriya to release the records of 47 patients. Mikuriya and his lawyers fought the subpoenas in court, but ultimately accepted a deal in which they released the records under the threat of medical license suspension, according to court documents.

Investigators combed through the 47 patient records and identified sixteen cases in which they believed Mikuriya had inadequately examined his patients. The medical board and attorney general then added one final case: that of a Sonoma County Narcotics Task Force agent who said that Mikuriya recommended pot to him during an undercover operation.

Prosecutors and investigators then brought in a San Francisco psychologist to study the seventeen cases as an expert witness. In making her determinations, Laura Duskin relied on a 1997 "policy statement" from the medical board that said California doctors who recommend marijuana should use the same patient-examination standards as doctors who prescribe any drug or procedure. Use of the strict state standard doomed Mikuriya. Duskin found him grossly negligent in all seventeen cases.

The doctor's attorneys later argued that he should not be held to the terms of the policy statement because it was not an official regulation. Mikuriya also noted that he considers himself a consultant, not a primary physician. His attorney, Susan Lea, argued that more-thorough examinations would force Mikuriya to raise his fees for patients who cannot afford it.

Lea noted that none of Mikuriya's patients complained or claimed they had been harmed by his advice, and that Duskin did not interview any of them. She further observed that Duskin had never once recommended pot to a medical patient. "Obviously, we're not dealing with people who respect Prop. 215," Lea said.

The two deputy attorneys general who prosecuted Mikuriya, Lawrence Mercer and Jane Zack Simon, did not return phone calls seeking comment for this story. But in court documents and previous statements to reporters, they contended that there was no conspiracy against Mikuriya.

The administrative law judge who oversaw the case bought the state's argument that the real issue was whether Mikuriya applied the appropriate standards of care. In his April 19 decision, Judge Jonathan Lew was unconvinced by testimony from Dr. Philip Denney, an expert witness for Mikuriya, that Dr. Tod's exams were sufficient under Prop. 215. In fact, Lew used Denney's testimony against Mikuriya, noting that Denney said he conducted thorough examinations of his own patients whenever he recommended marijuana to them.

Lew revoked Mikuriya's medical license, but stayed the order and put him on five years' probation. During this time, Mikuriya will be monitored by another doctor, who will periodically review his patient records. Lew also fined Mikuriya $75,000 to help pay for the medical board's investigation and prosecution. Board spokeswoman Candis Cohen said its current executive director, Dave Thornton, was "very satisfied" with the outcome of the case.

Shortly after Lew's ruling, Mikuriya opened a small new medical office above the El Cerrito Trader Joe's. Medical marijuana consultations remain his primary practice. He said he sees about forty patients a week, and intends to follow the state medical board's policy statement regarding the standards appropriate for recommending medical marijuana. Mikuriya also acknowledged using his chosen medicine himself, saying another doctor recommended it to him to help treat his mild depression.

Mikuriya is appealing Lew's decision on several grounds. One challenges the legality of the patient subpoenas. In a case involving another medical marijuana practitioner, Dr. David Bearman, the Second District Court of Appeals in Los Angeles shot down a request by the medical board and the state attorney general's office to subpoena patient medical records. The court said established precedent does not allow the board to "delve into an area of reasonably expected privacy simply because it wants assurance the law is not violated or a doctor is not negligent in treatment of his or her patient." Mercer and Simon of the attorney general's office argued that it is too late for Mikuriya to challenge the subpoenas.

At the same time, Mikuriya's defense team also is arguing that Lew neglected to reveal what they allege is a possible bias. Lew sits on the advisory board of a Christian group, Powerhouse Ministries, that equates marijuana addiction with slavery on its Web site. "The challenge is not about the judge's actual bias, but his failure to disclose a highly relevant fact that would have allowed petitioner to probe the possibility of that bias," Mikuriya's lawyers wrote in his appeal in Sacramento County Superior Court. Prosecutors Mercer and Simon called the suggestion that Lew's involvement in Powerhouse Ministries constitutes an appearance of bias "absurd and offensive."

Meanwhile, the medical board acknowledged the ongoing confusion surrounding proper standards of care by promulgating another advisory statement after Lew issued his decision. The new statement essentially repeats the 1997 statement. But like the earlier advisory, the new policy is not an official regulation.

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