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March 24, 2004 - The Anderson Valley Advertiser (CA)

Invitation To An Ambush

By Fred Gardner

Return to Drug War News: Don't Miss Archive

As reported here last week, Dr. Phil Leveque -- the pro-cannabis Oregon osteopath whose license was suspended March 4 -- has been invited to appear before the House Government Reform Subcommittee on Criminal Justice, Drug Policy and Human Resources. Claudia Jensen, MD, got invited, too. No other doctors have, as far as we know. The "investigative hearing" is scheduled for the afternoon of April 1.

The Subcommittee is chaired by Rep. Mark Souder, an Indiana Republican who wrote the grotesque bill that cuts off financial aid from students who have committed "drug crimes" (including marijuana possession in high school). Souder's proudest accomplishment of 2003 was legislation reauthorizing the Drug Czar's office and its operations for five more years.

The Souder aide who's organizing the April 1 hearing, Nick Coleman, says that the committee's interest in Jensen stemmed from an L.A. Times article that focused on her recommendation of cannabis for ADHD patients -- including a teenager. Jensen's colleagues assume Souder's purpose is to show pro-cannabis clinicians in a bad light and to develop neo-prohibitionist legislation. Some have advised her to decline the invitation to appear.

But Jensen relishes the chance to discuss the safety and efficacy of cannabis in the hallowed halls of Congress, and she is not reluctant to tell Rep. Souder about the teenager whose cannabis use she authorized. She plans to bring her two daughters, ages 16 and 13, who have never seen Washington, D.C. April's a good time to go there.

Most influential among Rep. Souder's corporate sponsors is Eli Lilly, headquartered in Indianapolis. Lilly is in the midst of a major marketing push for "Stratera," an ADHD drug. With millions of American school children taking drugs for ADHD, is it pure coincidence that the gentleman from Indiana is contemplating legislation that would eradicate the strongest potential competition?

Mikuriya Decision Ratified

The Medical Board of California has ratified without modification the "proposed decision" from Administrative Law Judge Jonathan Lew that will put Tod Mikuriya, MD, on probation for five years, during which time he must be "monitored" by a fellow physician. The pro-cannabis psychiatrist was also ordered to pay $75,000 towards the cost of his own prosecution, and to stop seeing patients at his home office in the Berkeley Hills.

Mikuriya says he can accept the prospect of a monitor -- Lew specified that it could be a fellow cannabis specialist -- but not the fine or the constraint on where he can practice.

A panel of six Medical Board members reviewed Lew's decision and agreed that Mikuriya had made "extreme departures from the standard of care" in his treatment of 17 patients. The "departures" generally involved failure to conduct a physical exam or devise a treatment plan, and issuing letters of approval implying that patients were under Mikuriya's ongoing care. Mikuriya argued that as a "cannabis consultant" his role was narrower than a primary-care physician's, and that none of his patients had been misled or harmed.

The hearing last September came down to a clash between two expert witnesses on the procedures required of a doctor approving cannabis use by a patient. For the prosecution, Kaiser psychiatrist Laura Duskin said the standard of care was determined by a 1997 "statement" by the Medical Board directing doctors to conduct a physical exam and to follow the same procedures when recommending cannabis that they would in prescribing any other drug.

For the defense, Philip A. Denney MD said that the 1997 statement should not apply to physicians whose sole function is to determine whether a given patient has a condition for which cannabis is an appropriate treatment. Lew's decision referred respectfully to Denney's testimony, but noted that Denney, as a practitioner, takes his patients' vital signs and conducts physical exams.

Mikuriya intends to appeal the Medical Board's order. He has two basic options: ask the Board to reconsider (this must be done before April 19, when the order takes effect), or appeal to the Superior Court.

Some lawyers experienced in dealing with state boards say it's a waste of time to ask the board itself for reconsideration. "Why bother with reconsideration?" sayeth the smart money, "Why put more energy into going back to the same board that's just hosed you? You don't have to do that to go on [with an appeal], so why do the exercise?"

In Mikuriya's case there is a special circumstance that might warrant his asking for reconsideration. The Board's 1997 guideline defining the standard from which Mikuriya was found to have made an extreme departure is being revised by a working group that includes representatives from the California Medical Association and the Board's Enforcement Division. If the working group -- to which Board members William Breall, MD, and Linda Lucks have recently been added -- comes up with practice standards that don't require a physical exam, Mikuriya would have a common-sense basis on which to request reconsideration. The revised guidelines are supposed to be discussed at the Board's May meeting.

Attorney John Fleer thinks the Board's decision to fine Mikuriya and put him on probation "shows everyone's unease with imposing the standard they're imposing. In most cases involving the medical board, or any state board, where you have even one extreme departure, let alone this many, it would follow that they'd revoke a license. That the order doesn't do that shows some recognition that this is a developing issue. Dr. Mikuriya wasn't found to be operating in bad faith -just wrong about the standard he had to follow."

If Mikuriya's lawyers choose to appeal directly to the Superior Court, they can do so either in Alameda County, where the hearing was held, or in Sacramento County, where the Medical Board is headquartered. Fleer says the advantage of Sacramento is that two judges are assigned to this administrative-law appellate-type work. "They are more experienced, they take it real seriously, and they understand how boards work - how arbitrary they sometimes can be. This would not be a matter of first impression for the judges in Sacramento as it may be for judges in other county superior courts."

If and when Mikuriya files a writ to appeal the order, the Superior Court judge would read the entire record and decide the matter anew. "It's not just a question of saying 'Was there substantial evidence to support what the [lower-level] judge did?' It's a trial de novo, based on the hearing record," Fleer explains.

In other words, a Superior Court judge would read what Laura Duskin said was the proper standard of care, and would read what Mikuriya and Denney proposed, and evaluate their reasoning, and give weight to who was in a position to know best. "It's not unusual for there to be two different standards being proposed by two different experts," says Fleer, who remains hopeful. "What the Board has done is accept the testimony of a physician who doesn't do cannabis recommendations over that of two who do. There might be judges who think that's an absurdity."

Fleer also used "absurdity" to characterize the $75,000 bill for cost recovery the board has ordered Mikuriya to pay. "It's a stunning amount for investigative and prosecution costs. It shows how much effort was put in by the state to dredge up a case where there was no complainant," says Fleer. (None of the complaints against Mikuriya came from patients, they all came from law enforcement.)

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