cannabisnews.com: Doctor Litigates With State Medical Board





Doctor Litigates With State Medical Board
Posted by CN Staff on September 03, 2003 at 20:52:02 PT
By Mark Tide
Source: Arcata Journal 
The California Medical Board is pursuing disciplinary legal action against this state’s most prominent, P215-related physician, simultaneously with officially engaging an effort - long advocated by that very physician - to establish the specific medical practice standards (for physicians recommending / approving per P215) which are the very subject of this legal action.Tod Mikuriya, M.D. and psychiatrist by specialty, has made a life-long study of medicinal cannabis. 
After passage of P215 in 1996, he began to actively function as a physician / consultant, recommending / approving use for what has become several thousands of patients across the state, including many in Humboldt County. He now faces the possibility of either: some form of imposed probation, suspension or revocation of his license to practice medicine in California. Former Attorney General, Dan Lungren, was overtly antagonistic toward this newly-adopted, ballot-initiative statute, and during his administration similar attitudes were very prevalent among this state’s law enforcement community. Complaints about Dr. Mikuriya’s medical activities, from law enforcement officials in 10 counties, were soon being received by the California Medical Board. Of 48 such complaints received (many after Lungren left office), 5 were received from law enforcement officials in Humboldt County, including one of the 17 complaints which now form the basis for the Medical Board’s legal hearing concerning Dr. Mikuriya, slated for Sept. 3 - 9, 2003.Dr. Mikuriya is charged by the Medical Board with deviating from what the Board announced in its quarterly Action Report newsletter of Jan., 1997, as “accepted standards of medical responsibility; i.e., history and physical examination of the patient; development of a treatment plan with objectives; provision of informed consent, including discussion of side-effects; periodic review of the treatment’s efficacy and, of critical importance especially in this time of uncertainty, proper record keeping that supports the decision to recommend the use of marijuana.” Alleged deviations by Dr. Mikuriya, from this policy order, based on several years of Medical Board investigations involving these complaints predicated exclusively by local law enforcement officials within Northern California, have resulted in this administrative legal action against him by the Board for: unprofessional conduct, gross negligence, repeated negligence, inadequate records, superficial examinations, insufficient patient follow-up, and an absence of conventional treatment plans.Through a press aide to the State Board of Prison Terms, to which former Humboldt District Attorney, Terry Farmer, has recently been appointed Chief Counsel by Governor Davis, Mr. Farmer refused any comment on this matter.According to Ron Joseph, its Executive Director, the Medical Board “has always taken the position that P215 allows physicians to recommend if they arrive at that judgment as they would for any other form of treatment plan,” consistent with the Board’s Jan. ‘97 policy statement.However, Joseph now also indicates that, “I believe it is possible to develop a body of guidelines to assist physicians who are active in this area,” referring to a recently initiated effort between the Board and a “technical advisory committee” from the California Medical Association (CMA) to develop medical practice standards that are specific to P215’s rather unusual circumstances.Several sources within both the Medical Board and CMA agree with Mikuriya’s legal counsel, that it is largely Dr. Mikuriya’s personal lobbying - in coordination with Alice Mead, Legal Counsel for CMA - that has created, according to Ron Joseph, “an interest and stir on this issue, and interest among appointed board members to take some form of action. It grew out of a directive by the Board (in May 2003) that we work with CMA.”“Testimony was taken from some patients and physicians, then the Board directed staff to sit down with representatives from CMA and try to arrive at (appropriate) guidelines, . . . which are meant to encourage physicians to be comfortable that - if those guidelines were met - there wouldn’t be any form of adverse consequences from the Medical Board,” assures Joseph. Joseph also indicates that copies of the draft of these proposed new guidelines will become available to the public during mid-October, in advance of consideration at the Medical Board’s Nov. 6-8, 2003, meeting in San Diego. Thus, release of the fruit of his long-standing advocacy for new guidelines will follow just weeks after Dr. Mikuriya must face the disciplinary hearing which is based on his alleged violations of the existing version of guidelines which he has been challenging.With an 8-year tenure leading it, Ron Joseph states that, “Medical Board policies have been relatively constant since the passage of (P215), but may appear to be shifting,” because of the strange dynamics of this issue.“If any penalty is adopted,” in such a case, says Joseph, “then they can appeal for a re-hearing by the Board, or else take a writ” to the Superior Court. Penalties range from a letter of reprimand to revocation. Joseph confirms that legal appeals in such an action may take several years to finally resolve. During that time period Dr. Mikuriya’s license would remain valid.At its May, 2003, meeting, CMA considered an action generated in part by Dr. Mikuriya, entitled: “Resolution 116a-03: MEDICAL MARIJUANA MINIMUM PRACTICE STANDARD: That CMA urge the Medical Board to revise its guidelines concerning medical marijuana so that the guidelines include the requirement for a good faith exam with diagnosis, treatment and follow up recommendations, and more fully clarify and affirm the legitimate role of physicians in recommending marijuana to appropriate patients; and . . . urge the Medical Board to apply clinically appropriate standards of care to all physicians, and not to apply a higher standard of care or to require a higher degree of evidence in cases where medical marijuana is involved.”As a substitute action, rather than adoption of this resolution - the result of Dr. Mikuriya’s lobbying efforts - CMA decided to instead create the “technical advisory committee,” noted by Ron Joseph, which is currently directed to work with the Medical Board to develop new practice standards that are unique to P215.Interestingly, even that advisory note in its Jan. ‘97 newsletter (the only official statement by the Board on this subject, until July 2003) contains an element of conflicting circumstances. “While the status of marijuana as a Schedule I drug means that no objective criteria exists for evaluating the medical rationale for its use, there are certain standards that always apply to a physician’s practice that may be applied,” declares the newsletter.The reality of this incongruence, as well as in its expressions by the Medical Board, is central to the problems being faced by Dr. Mikuriya.The Board’s current (July 2003) newsletter states that, “Since the passage of Proposition 215 in 1996 there has been a great deal of confusion concerning the role of physicians under this law,” going on to frankly admit that the Board’s previous statement of policy, “has not been adequate to resolve the uncertainties that exist, particularly when the physician who is evaluating the patient is not also treating the patient’s underlying condition.”This July 2003 newsletter also expresses that, “the Board recognizes that these principles (from its Jan. ‘97 newsletter) may require further elaboration to take into account the factors that may affect the physician-patient relationship in this context. The Board seeks to provide greater guidance to physicians to enable them to participate appropriately in the implementation of (P215), while meeting their professional and ethical obligations under the relevant standard of care.”Ron Joseph of the Medical Board explains that in this state physicians are issued a “plenary license to practice medicine,” which doesn’t include different standards for separate categories, “by specialty or expertise. It’s the same (single) standard for all, consistent across the entire field of practice.”“Doctors have a broad base of knowledge of symptoms, causes, medical approaches and treatment options,” relates Joseph, “and guidelines are about having performed some evaluation sufficient to arrive at some medical judgment, applying medical knowlege and decisionmaking, that will lead you to a treatment plan. Many treaments defy objective and precise standards, are unique in terms of properties or applications,” explains Joseph, “but still depend on medical judgment based on accepted standards of practice.”As clear examples of the sort of issues facing Dr. Mikuriya, Joseph notes that, “situations of ongoing treatment should require an informed consent discussion of relevant risk-factors; adequate follow-up is important;” and he also emphasizes that, “although record-keeping may seem technical or trivial, it can be very important on different levels,” and the increasing mobility of persons in our society demands that adequate records be maintained for the benefit of both patients and physicians within such an environment.Unable to discuss the particulars of the action involving Dr. Mikuriya because of its current stage of process, Joseph indicated that, “suspension or revocation is actually quite rare. In our general system’s operation, an item very frequently required is a record-keeping course.”If there actually existed significant lapses in medical judgment about recommendations / approvals, per se, on the part of Dr. Mikuiya, shouldn’t such a large volume of patients (7 - 8 thousand) have resulted in obvious, significant or severe breakdowns in patient care and attendant consequences?In his August 4, 2003, ruling denying a motion by legal counsel for Dr. Mikuriya to dismiss charges, Administrative Law Judge, Jonathan Lew, observed that, “. . . the Board’s expert in this case was not even critical of (Dr. Mikuriya’s) recommendation, or use, of marijuana medicinally.”No significant complaints arising from patients or peers have been filed against Dr. Mikuriya, according to his attorneys, who point out that a single occasion, early in the investigations, concerns a conservator - patient situation that has been the subject of disputed perspectives.Otherwise, only another single example of a patient-originated complaint, also subject to some dispute, has been produced by the Medical Board, declares one of four attorneys representing Dr. Mikuriya, Bill Simpich of Oakland, who denies the existence of any valid pattern of patient / peer compaints.Despite Ron Joseph’s description of the relatively low odds of license suspension or revocation, in general within the case-flow of the Board, legal counsel defending Dr. Mikuriya have been fierce in their description of affairs.“This whole issue seems to be standards of practice,” explains Susan Lea of Stinson Beach, another defense counsel. “There has been no direct or clear policy from the Medical Board, and that’s what licensed physicians are looking for. Physicians [have been] operating in a complete vacuum, a state of complete uncertainty, and that’s the reality of the situation.”“All we have are ambiguous statements, never converted into official regulations according to law,” Lea observes, going on to complain about “an Orwellian manipulation . . . a trap of shifting standards.”“Disgruntled law enforcement officials,” says Lea, have instigated the Medical Board into following their efforts to tar Dr. Mikuriya, “as a rubberstamp and a quack,” provoking the Board to, “go after him so that these criminal defendants don’t get off.”This law enforcement campaign to somehow discredit Dr. Mikuriya was hatched soon after P215 became law, by Lungren and his associates, according to Lea. “John Gordnier (Lungren’s major staffperson in this area) admitted to me that it was their purpose to chill-out any physician who would involve themselves with Prop. 215. Now, other persons in the Dept of Justice, leftover from Lungren’s administration are carrying out a vendetta. They want to send a message to doctors in California, that if you do this you’ll lose your license.”“The prosecution here is side-stepping the law, with result-oriented reasoning,” argues attorney Ben Rosenfeld. “It’s cynical and devious, sour grapes and an end-run around the law,” in an effort to derail this ballot initiative’s implementation . . . legislation by fiat, on the part of the Medical Board and Administrative Court.”“The Medical Board has been stalling,” complains Lea, “but it is now finally coming to a place of promulgating duly official standards, the very things that should have been issued much earlier. And the CMA has finally come forward after having postponed and procrastinated for years now. I don’t think that any of these people believed that P215 would be around today.”“Most docs have been scared to death,” describes Lea, “and the few who are participating have been singled-out (for investigation and potential disciplinary action).” Bill Simpich, also defense counsel for Dr. Mikuriya, agrees and points out that “of the 10 to 15 physicians who are writing the substantial majority of P215 recommendatons / approvals, 9 have been hauled before the Medical Board for investigations and hearings.”“The CMA hasn’t fought hard enough to give people guidance on this subject,” argues Simpich. When asked about the strangely similar timing of the culminations of both Dr. Mikuriya’s lobbying effort for new guidelines, and the Medical Board’s disciplinary processes, Simpich responds, “Isn’t that coincidental?! I’m just livid about it!”This is all just an effort to dirty-up Tod,” says Simpich. “They’re using a shotgun-type approach to create an unfair impression of incompetence. The standard they want to hold him to is like a Chesire Cat - it doesn’t really exist. There are no reasonable and precise guidelines in effect for these situations. Why, if we’re going to finally pound-out some correct standards, are we proceeding into this hearing? It’s a witch-hunt. They want to bring this guy down. They want to break him. They want to degrade him.”“That’s the shocking part to me, says John Fleer of Walnut Creek, another attorney on Dr. Mikuriya’s defense team, who has many years of experience with unusal medical cases. “Patient or peer are the usual paths from which complaints are filed. I’ve never had one totally generated by law enforcement officials’ not liking what the law is.”“What physicians would do here differs among them, and also under various circumstances,” explains Fleer. “Our view of standards is different from what the Medical Board believes they should be. Tod has been more of a consultant, one of a handful of physicians who have been willing to be available for these consultations. On this subject, he has been very active in trying to get [formal Medical Board] standards. As recently as this month, the Board’s own newsletter reflects his efforts.”All of Dr. Mikuriya’s attorneys raise what they believe to be significant legal issues involving abridgement of freedom of physicians’ speech and their legal immunity from such charges, seemingly granted within P215.Judge Lew states in his ruling denying a motion to dismiss the charges, that we need to “draw a clear distinction between the physician’s recommendation, and the process by which that recommendation was reached.” This question of immunity “is the crux of the case,” and that “immunity is “condition[ed]” on the “presum[ption] that physicians [] will follow accepted medical practices and make good faith recommendations.” Whatever is identified through expert testimony at the Sept. 3 -9. 2003, hearing, as being the relevant, “accepted standard of medical practice,” thus appears to the administrative court as being central to the matter of defining the form of physicians’ immunity from legal action which is presently available for Dr. Mikuriya’s defense.Complete Title: P215 Doctor Advocates & Litigates With State Medical BoardSource: Arcata Journal (US CA)Author: Mark TidePublished: Tuesday, September 2, 2003Copyright: 1998-2003 Arcata Journal ~ www.arcata.orgWebsite: http://www.arcata.org/Contact: http://www.arcata.org/contact.htmlRelated Articles & Web Site:Tod H. Mikuriya, M.D.http://www.mikuriya.com/Hearing To Decide Fate of Pot-Prescribing Dochttp://cannabisnews.com/news/thread17218.shtmlMikuriya To Med Board: No Dealhttp://cannabisnews.com/news/thread17183.shtmlProsecutors Putting Heat on Medipot Doctorshttp://cannabisnews.com/news/thread17149.shtml
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Comment #8 posted by FoM on September 04, 2003 at 19:55:20 PT
SoberStoner
I really hope it works out for Dr. Tod. He seems like such a caring person. These kinds of things should never happen. Never.
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Comment #7 posted by SoberStoner on September 04, 2003 at 19:46:09 PT
I actually got a response from Dr. Tod
I did email him a link to the IOM report just in case, and was totally surprised that he wrote me back, and even more surprised when he called the report disappointing for not mentioning vaporizers as an alternative method of usage.In a time where he is facing absurd charges like this, the fact that he took the time to respond to my email floors me. I'm very glad that he already knew of the report, and the fact that he is critical of it's conspicuous absence of vaporizers as a delivery method gives me some small insight into the type of care his patients would be recieving. How many cannabists know about vaporizer technology? How many know of the true beneifts of vaporizers? If he told me about it (and i'm a completely unknown stranger from the other side of the country) I would be shocked if he didnt mention it to his patients as well. I hope that Dr Tod is not offended that I paraphrased his response to me here, I just wanted to share it with the world as my own personal example of the good doctors expertise.SS
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Comment #6 posted by kaptinemo on September 04, 2003 at 09:22:01 PT:
Typical anti behavior
Antis just hate a level playing field.Don't like the idea of cannabis-as-medicine? Use police lobbying organizations and DARE programs to tell lies about it. When the people protest the law is too stringent, then say "Use the legislative process to change the law."Don't like it when the citizens of a State do just that and vote to make legal access to cannabis for the sick? Use Federal government facilities, time, money etc. to try to overturn it.When your attempts to derail medical cannabis fail at the ballot box and in the public's perception, then target medical cannabis providers, activists, attack patients and caregivers.When sound medical studies prove it's effectiveness and relative harmlessness as a drug, use law enforcement to harass doctors.It bears repeating: these are desperation tactics. The writing has been on the wall for over a decade now. MMJ is coming, and the recent ruling in Alaska which addresses PERSONAL USE as well as medical has placed the Fed DrugWarriors and their various State doppelgangers on notice that they have LOST THE WAR.So they resort to spiteful, underhanded tactics like this one, hoping that their involvement can be understated enough to slip under the public's radar.Too late: this is happening in California, where the Feds may have succeeded in only further alienating themselves with their previously short-sighted arrogance in attacking patients. The Rosenthal trial has given them a black eye, caused members of the public who previously were neutral or complacent to take notice and wonder at the expenditures the State can't afford anymore used to chase cannabists, and has increased knowledge of jury nullification and sundry other matters they wished to keep out of the public's eye and out of their awareness. The DrugWarriors are steadily losing ground and they are feeling their oats and trying for a vicious backswipe. Ashcroft and company are as welcome out there as an Alzsheimer's victim with leprosy who's forgotten he has it, much less where his bell is. 'Terrorism' is hardly the real concern why he keeps his visit schedule secret; he's afraid he'll be forced to do like McCaffrey did in London years ago when his lies about cannabis were publicly countered by knowledgable people: make an undignified dash down an backstreet alley in retreat from them. This latest stunt will only compound their public-relations disaster when more details about this are made available.This kind of harassment tends to backfire rather messily for antis; Oh, speed the day!
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Comment #5 posted by FoM on September 04, 2003 at 07:21:08 PT
Hi Nicholas
I saw that they agreed on medical marijuana. That is good news.
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Comment #4 posted by Nicholas Thimmesch on September 04, 2003 at 07:11:09 PT:
Somewhat good news on the "Recall" front...
....is that of the five CA Gov "debate (where were the other 130 people?), all five "supported" medicinal marijuana: http://www.sacbee.com/static/weblogs/insider/The big winner in the debate: marijuana. All five candidates declared their support for making it available for medicinal purposes. It was the only thing on which they all agreed
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Comment #3 posted by goneposthole on September 04, 2003 at 06:12:57 PT
They're picking on Dr. Mikuriya
'Alleged deviations by Dr. Mikuriya, from this policy order, based on several years of Medical Board investigations involving these complaints predicated exclusively by local law enforcement officials within Northern California, have resulted in this administrative legal action against him by the Board for: unprofessional conduct, gross negligence, repeated negligence, inadequate records, superficial examinations, insufficient patient follow-up, and an absence of conventional treatment plans.'leave the good doctor alone. How many of his patients improved their lives and health and well-being under his care? Did his patients benefit or become more ill? Let Dr. Mikuriya's record speak for itself; now, he is being subjected to a witch hunt. Let his patients speak on his behalf. Dr. Mikuriya has done his job. Only if he has done harm to any of his patients can he be scrutinized. All of those allegations are trumped-up complaints to more or less demonize Dr. Mikuriya. They fall short of the mark. 
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Comment #2 posted by Virgil on September 04, 2003 at 03:08:30 PT
Hold on to that prohibition
The Powers That Be could care less about using/creating a system that would make the world a better place.If they cared about a functioning medical system at its best they would prohibit those licensed by the DEA to prescribe medicine the right to own stock in pill companies. They would also work to reduce the the use of a very dangerous and a super highly addicted drug that is the #1 pain killer in use the country for chronic pain- Oxycotin.What we see here is more Vicious and Malicious from our Prohibitionists.Will the doctor be on telivision after the trial to tell the tale of the preordained outcome? Of course not. We have prohibition because of media complicity. 
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Comment #1 posted by Motavation on September 03, 2003 at 21:37:42 PT:
Medical Board is Persecuting Dr. Tod Mikuriya
The California Medical Board is "pursuing disciplinary legal action" against this state’s most prominent, P215-related physician, simultaneously with officially engaging an effort - long advocated by that very physician - to establish the specific medical practice standards (for physicians recommending / approving per P215) which are the very subject of this legal action.after reading this article, I am under the opinion Dr. Mikuriya is been Persecuted
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