Lawyers for Berkeley psychiatrist say client target
Saturday, July 12, 2003 - 4:00:04 AM PST
By Josh Richman, Staff Writer
Lawyers argued Friday over whether the state should be allowed to continue
its attempt to revoke the medical license of a Berkeley psychiatrist who
has recommended marijuana to thousands of patients.
Administrative Law Judge Jonathan Lew said he'll issue a written proposed ruling within about three weeks, which will then be submitted for the Medical Board of California's consideration.
Lawyers for Dr. Tod Mikuriya, 70, say the state is on an anti-marijuana
witch hunt against him, but he's protected by broad immunity granted to physicians by the state's medical marijuana law. They want Lew to dismiss the case before it goes to a full hearing in September.
Lawyers for the state claim marijuana has nothing to do with this case -- they claim Mikuriya should be disciplined because he has advised patients on treatment without properly examining them, reviewing their histories and adhering to other basic standards of care that all doctors must honor.
Mikuriya has researched and advocated medical marijuana use for decades, and has served in various local and state advisory posts, including that of medical coordinator for the Oakland Cannabis Buyers Cooperative.
He says he has given more than7,300 patients his written approval to use marijuana as medicine. He claims about a quarter of those patients suffer chronic pain, about a quarter suffer spasticity -- muscle contraction caused by spinal or brain injuries, multiple sclerosis, cerebral palsy or other ailments -- and about a quarter suffer various mental disorders. He says he has recommended marijuana to other patients as a substitute for alcohol, as an appetite stimulant or to reduce body temperature.
The state wants his license revoked because of his alleged failure in 16 medical marijuana cases "to examine the patient, to obtain a history, to perform an appropriate workup of the patient's symptoms and findings, or to follow up with or monitor the patients," according to a brief the Attorney General's office filed July 3.
"The accusation in no way seeks to punish or otherwise sanction Dr. Mikuriya for having recommended marijuana," the brief said. "The fact that marijuana happened to be the drug in question is quite irrelevant to the charges."
California's medical marijuana law offers no immunity to the standards and regulations generally applied to all doctors, the brief argued.
"If a physician abdicates these fundamental responsibilities, he becomes nothing more than a shady businessman with a prescription pad," it said.
But Mikuriya's motion to dismiss the case argues the law grants broad immunity, stating "no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes." And because marijuana isn't "prescribed" like federally permitted drugs, other standards don't apply to its recommendation.
Mikuriya's hearing capped a busy eight days on the medical marijuana front.
Federal prosecutors filed notice July 3 that they'll appeal a judge's sentencing of Ed Rosenthal -- a noted marijuana activist and author from Oakland who was convicted in January of three marijuana cultivation felonies -- to only one day of jail time he'd already served. Prosecutors wanted him put behind bars for about six and a half years. Rosenthal plans to appeal, too, wanting his convictions overturned.
On Monday, the White House drug czar's office petitioned the U.S. Supreme Court to review and overturn a 9th U.S. Circuit Court of Appeals' ruling supporting doctors' right to openly discuss or recommend marijuana as treatment without facing federal investigation and action to revoke their licenses.
Also Monday, a federal judge in San Jose held a hearing on a lawsuit
filed by the city and county of Santa Cruz and patients from the Wo/Men's
Alliance for Medical Marijuana seeking to stop federal raids on medical
marijuana cooperatives. WAMM, near Davenport, was raided last September;
its plants were destroyed, but no criminal charges were filed. The judge
has not yet ruled on the plaintiffs' request for an injunction to halt
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