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| Newsletter Jan-Feb, 2008 |
Medical Board Makes Mikuriya Ruling "Precedential" relates to the July 2007 Medical Board of California (MBC) meeting.
The Med Board has undergone an extensive re-organization, including
an imminent change to "vertical enforcement", which some staffers
have called "vertical prosecution" in an apparent Freudian slip as to
their intentions. As I ask in this report:
"Why was the medical board so keen to make these points
“precedential?” Was the vote a prelude to more investigations aimed
at pro-cannabis doctors? Will the quick-in, quick-out clinics be
under heightened scrutiny?
My position has been to appeal to my colleagues to conduct
examinations that are thorough and well documented, and for patients
to avoid substandard practitioners. Doctors and dispensaries that
cross-refer are particularly at risk in the current climate. The feds
would like nothing better than an excuse to investigate doctors who
approve cannabis use."
Just a couple of points I notice from the January 2008 Medical Board
agenda, and the over 200 pages of "materials" posted at their
website : http://www.medbd.ca.gov/board/meetings/Index.html : The
Division of Medical Quality no longer exists; same witth the
Diversion Program.
I did attend this meeting, and will have more to say after reviewing
the materials more fully. Till then, I expect that physicians with
good standards will have the least to worry about. My ongoing survey
of medical cannabis physician practice standards (http://
www.medboardwatch.com/wb/pages/physician-survey.php) reassures me
that the majority have good standards, and will be easier to defend
if needed.
I would advise legitimate patients (the majority of those seeking
recommendations) to avoid the mills, and any doctors who refer
patients to particular dispensaries or otherwise cross-refer with
them. (what I call "DEA targets".)
Also avoid those with non-physician owners (illegal!! ), and any
doctor who has patients "steered" to them for money or other valuable
consideration (illegal! ).
People should only refer to doctors with good standards. Otherwise
they are doing a disservice to legitimate patients.
FL
Frank H. Lucido MD
Family Practice since 1979
Medical Cannabis Consultation
Expert Witness
2300 Durant Avenue
Berkeley Ca 94704
510.848.0958 (by appointment only)
www.MedicalBoardWatch.com
www.DrLucido.com
Published in the Winter/Spring 2008 issue of O’Shaughnessy’s, The
Journal of Cannabis in Clinical Practice (Society of Cannabis
Clinicians)
Board Makes Mikuriya Ruling "Precedential"
By Frank Lucido
The Medical Board of California (MBC) voted at its July meeting to
make the last ruling in the case against Tod Mikuriya “precedential” —
even though MBC v. Mikuriya was not reviewed by an appellate court,
the level at which the board has conferred precedential status on
past rulings.
Precedential status means that administrative law judges reviewing
the board’s accusations against doctors in analogous cases must adopt
the reasoning of ALJ Jonathan Lew, who ruled against Mikuriya in 2004
(See story on page 10, Winter 2008 issue of O’Shaughnessy’s). As
explained by attorney Scott Candel in the box at right, Mikuriya won
a small modification from a Superior Court judge, but it had no
bearing on what the board is now setting in stone.
At the July 27 meeting of the board’s Division of Medical Quality, I
asked for clarification of what, exactly, was to become precedent. I
was told alternately that it was “two key points” or “every word in
the decision.”
Doctors’ Immunity Isn’t Absolute
The two key points, as stated in a memorandum from Anita Scuri, a
lawyer for the Department of Consumer Affairs:
“1. The standard of care for conducting a medical marijuana
evaluation is identical to that followed by physicians in
recommending any other treatment or medication and it applies
regardless of whether the physician is acting as a treating or as a
consulting physician.
“2. The Compassionate Use Act is conditional and does not immunize
a physician from disciplinary action in those cases where the
physician’s care falls below the accepted standard.”
This decision should not be onerous to most physicians who approve
cannabis use by patients, since the majority have practiced
“defensive medicine,” expecting to be scrutinized carefully when
dealing with controlled substances, especially those defined as
“abusable” by the DEA.
Why was the medical board so keen to make these points
“precedential?” Was the vote a prelude to more investigations aimed
at pro-cannabis doctors? Will the quick-in, quick-out clinics be
under heightened scrutiny?
My position has been to appeal to my colleagues to conduct
examinations that are thorough and well documented, and to patients
to avoid substandard practitioners. Doctors and dispensaries that
cross-refer are particularly at risk in the current climate. The feds
would like nothing better than an excuse to investigate doctors who
approve cannabis use.
The second point that the board established as precedent defines the
legal immunity conferred on doctors by Prop 215 as conditional rather
than absolute. Conditional immunity means that the act of
recommending marijuna to a patient does not excuse the doctor from,
say, missing a diagnosis of bone cancer as the cause of the patient's
pain. A malpractice suit by the patient or punishment by the medical
board is not foreclosed.
Many medical cannabis activists and patient advocates argue that
the wording of Prop 215 —now Section 11362.5 of California’s Health &
Safety Code—gives recommending physicians absolute immunity. It
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.”
Pro-cannabis doctors do not receive special protections.
It’s true that the drafters of the Compassionate Use Act wanted to
protect doctors who recommended cannabis from biased investigations
and accusations. But unconditional immunity for doctors deprives
their patients of protection. Doctors who are negligent should be
held to account. Pro-cannabis doctors should act in accordance with
the way physicians are expected to act in other areas of medicine. We
should not require special protections.
Tod himself frankly wished he had paid more attention to
documentation in the period when he was trying to “confer legitimacy”
on as many patients as possible. Towards the end of his hearing in
2003, ALJ Lew asked Tod: “If there were a finding that your practice
standards should be modified, would you be willing to do so?”
Tod replied, “Absolutely.”
In the wake of the Mikuriya ruling becoming precedential, I expect
that physicians who make safe and appropriate recommendations —the
vast majority — will be left alone by the medical board, and may even
sleep better at night.
If we continue treating cannabis as medicine, it’s only a matter of
time before responsible physicians who would never have thought of
recommending cannabis will say: “I wonder if a trial of vaporized
cannabinoids would help this patient?” In fact, this has begun to
happen already.
Federal Implications: None
A “Discussion of Federal and California Appellate Decisions
Pertaining to Medical Marijuana” was on the July agenda at the
request of MBC executive director David Thornton. He wanted to know
the bearing on the board’s medical marijuana policy of a federal
court ruling against Angel Raich. (The 9th Circuit Court of Appeal
had ruled in March that Raich, who happens to be my patient, is not
immune from federal prosecution even if her life depends on access to
marijuana.)
The AG’s office sent Larry Mercer and Jane Zack Simon to explain to
the board that Angel Raich’s federal exposure had no bearing on their
dealings with pro-cannabis doctors in California.
I used the public comment period to emphasize that the entire
California Compassionate Use Act of 1996 is still the law in
California, as affirmed by Attorney General Jerry Brown. I also
reiterated that state agencies have a primary responsibility to
uphold state law, according to the California constitution.
Frank Lucido can be reached at [email protected]
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