from Medical Board informing of possible Attorney General action against
Dr. Mikuriya's attorney, Susan Lea's response
7/14/00 Complaint from Division of Medical Quality Medical Board of California to State Attorney Bill Lockyer's office asking for action against Dr. Mikuriya's license.
9/14/00 43 subpeonas for records received from Medical Board. The further politicization of the medical board continues. 43 new complaints--all from police and DA's--0 complaints from patients and/or the medical community. Sample subpeona.
Medical Board of California, Division of Medical Quality Manual
of Disciplinary Guidelines.
Medical Board of California and Tod H. Mikuriya, M.D.
"Admittedly, I asked for it the first time. And now am again under scrutiny for the use of cannabinoids in my practice of medicine. The first time it started with a phone call from a probation officer from Nevada County who told me to stop prescribing Marinol to one of his ďclientsĒ a patient of mine because it interfered with the drug testing. At the time the testing couldnít differentiate between the synthetic delta 9 THC and cannabis. (Mahmoud el Sohly now claims he has a protocol that will make the distinction by testing for THCV which has yet to be confirmed. He has offered to make the testing available for $17,000.)
I verbally rebuffed the request and told the P.O. that when he had a license to practice medicine he could countermand and prescribe alternatives. The confirmatory letter to him and cc to the judge in the case resulted in a complaint to the Medical Board.
The Medical Board investigator Karin Fetherston paid an unannounced visit. Flashing her badge she demanded to look at all my triplicate blanks and patient files. This was not possible since I kept the files at home and only brought those with whom I had appointments into the office with me. A second visit was scheduled to discuss selected cases but this time my attorney, Susan Lea, was present to prevent ďfishing expeditionsĒ as was (and is) Ms. Fethersonís wont.
The resultant threatening letter said the file would be kept open for five but nothing would be done unless there were other complaints.
Now, it would seem the same etiology of blurred boundaries within the criminal justice system. Somehow non medically trained CJ individuals are conferred with the power to practice medicine without MD.
Unfortunately, there is no counterpart to the Medical Board for the criminal justice system so there is no opportunity for riposte and action for this institutional malice.
The investigative administrative procedure is wilfully opaque and bereft of what one would usually think of as due process. A communication some 15 days after the interview did we find out that we wouldnít find out since the interview was initiated by an internal source.
In this instance, there were 2 cases to be reviewed initially. One patient declined to sign a release of information form because of an ongoing involvement within the Napa county criminal justice system over a marijuana cultivation case. In my large practice that encompasses Northern California, a tiny percentage is from Napa. The only thing in common between the two cases (besides the use of cannabis medicinally with my physicianís statement of recommendation and approval) was involvement with the Napa county criminal justice system.
The bogus certificate or physician statement mentioned in the transcript is attached.
Of interest is the lack of email or internet capabilities within the CMB investigative unit with the plea--in an off hand remark--that the powers-that-be change their allocation of resources."
Tod H. Mikuriya, M.D.
November 14, 1999
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Supporting documents: An 18 page PDF file containing documents referenced above. Includes information on the original (1993) complaint, a fake "physicians statement" (found being passed out at Raggae on the River 1999), and documents concerning the present investigation.
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Medical Board of California District Office
3478 Buskirk Avenue, Suite 217
Pleasant Hill, California
A P P E A R A N C E S:
Presiding: Karin Fetherston
Medical Board of California
Enforcement Field Operations
3478 Buskirk Avenue, Suite 217
Pleasant Hill, CA 94523
Tel. No.: (925) 937-1905
Examiner: Martha E. Snider, M.D.
District Medical Consultant
Medical Board of California
Enforcement Field Operations
3478 Buskirk Avenue, Suite 217
Pleasant Hill, CA 94523
Tel. No.: (925) 937-1900
Respondent: Tod Mikuriya, M.D.
Tel. No.: (510) 548-1188
RespondentísCounsel: Susan Lea, Esq.
P. O. Box 511
Stinson Beach, CA 94970
Fetherston: Dr. Mikuriya, this is Martha Snider, our medical consultant. Please take a seat. Why donít you sit in the first place.
Fetherston: Whatís that?
Mikuriya: A recorder, a video recorder.
Fetherston: Weíre not video recording.
Mikuriya: Okay, well Iíll turn it and point it the other way. I donít have another kind of tape recorder.
Lea: But, youíre so photogenic, Karin.
Fetherston: Right, right, right, right. Flattery will get you everywhere, right?
Lea: Donít you wish you were still young? You had to decide between Harvard or Hollywood, what a choice.
Fetherston: Yeah, I saw those pictures. Itís too awful, I hate to say.
Fetherston: I still have the old area code, I didnít realize until the other day, but (tee hee) Iím still the same person.
Mikuriya: Do you have water?
Fetherston: I donít have any in the room ó I can get you one.
* * *
Fetherston: Dr. Mikuriya, I remember from the last time we met -- we tape record these meetings and we very rarely have occasion to transcribe tapes. But in the rare event that we do, the transcriber has asked us to voice identify ourselves. So Iím Karin Fetherston, Senior Investigator, State Medical Board.
Snider: Iím Martha Snider, Medical Consultant.
Mikuriya: Tod Mikuriya, physician.
Lea: Susan Lea, attorney representing Tod Mikuriya.
Fetherston: And itís September 15, 1999, and Dr. Mikuriya has come to the Pleasant Hill office of the Medical Board. And thank you in response to our request to talk about two different things: a patient and another problem that he brought to our attention. Dr. Mikuriya, you may remember also from before that when we start out this we have a set pattern of questions that goes through things like what would be on your CV. I didnít ask you . . . you didnít happen to bring a CV with you?
Mikuriya: I donít know if I have one. Iíll check.
Fetherston: Okay, that would be great Ďcause that duplicates some of the beginning information there that we always go through.
Lea: I would just like to put on the record that before we start, we would like to know ó since we donít know at this time and havenít been apprised of this information -- what the nature of the complaint is, essentially, why weíre here.
Fetherston: Miss Lea, I wrote to you ó where is that letter? And gave to you the . . . on August 17.
Lea: I have your letter Karen, but I . . .
Fetherston: Did you make your 800(c) request?
Lea: We also have the right before . . . we have a due process right. We have the right to know why weíre here, and before we answer questions, what the questions are related to, what the scope of the investigation is. And Iím assuming you know what that is or you wouldnít be here yourself.
Fetherston: Um. I can re-read the letters to you Dr. Mikuriya, and weíre talking about one patient, Mr. X. And weíre talking about Dr. Mikuriyaís concern that he brought to our attention when he sent his fax to the Medical Board on . . . August 13, 1999.
Lea: This is the concern about that forged certificate?
Lea: What is the Medical Boardís concern about the patient X? What is the nature of the investigation?
Fetherston: This is totally inappropriate to discuss at this time. Any questions that we ask here in this setting that you do not with your client to answer, thatís why youíre here, and you may tell your client to answer them or ask to take a break and confer with your client in the other room. But weíre ready to go ahead and . . . all nature of questions . . .
Lea: Excuse me, are you saying that you have no obligation to disclose what the nature or scope of your investigation is?
Fetherston: I gave you all that information.
Lea: I donít have that information, so are you prepared to disclose it on the record? Before you start asking questions, could we please know why weíre here?
Fetherston: You have the full right to make . . . thatís you Dr. Mikuriya, excuse me -- have the full right to make a request under Business and Professions Code §800(c). Iím not prepared to give any other information. Iím here to give you the opportunity to provide any input to the Medical Board for us to proceed . . . no, Iím not making my self straight already. In the matter of your care and treatment of patient XXXX. Itís going to an expert for review. I wrote to you and told you exactly what materials would be provided to the expert for review, and said that you had the opportunity to come to the Medical Board and provide any information in addition to that background information about how you dealt with Mr. XXXX. And weíre here for YOU to have that opportunity to do so. It is voluntary.
Lea: Well then, I would suggest that we show the video, because thatís the whole medical visit and then leave because, in essence, we donít know why weíre here.
Lea: Let me just finish. We donít know the scope of your investigation. We donít understand, and we have a due process right to know this, why weíre here. And youíre refusing to tell us and youíre saying if we want to find out what the complaint and the nature of the complaint is that has been lodged against Dr. Mikuriya and why the Medical Board is looking at him and investigating him, that we have to write pursuant to Business and Professions Code §800(c) to David Thornton, because youíre not going to tell us.
Fetherston: Thatís exactly correct. Thatís not my job to do so. Dr. Mikuriya, is that in your tapes something that you wish the reviewing expert to review?
Fetherston: Fine, you can just give it to me and it will be put in the file. Thank you.
Lea: Do we have your assurance that we will get that back, or is that a copy?
Mikuriya: Thatís a copy. They can have it.
Fetherston: Do you want to answer the background questions about your training, your specialty, your hospital privileges, if you have any, those kinds of things to bring before the . . . experts . . . benefitting the experts so that they will have your training background, where you attended medical school and so forth?
Lea: All of that information is available from the last investigation on the Marinol presentation.
Lea: Excuse me?
Fetherston: Youíre incorrect. And things such as hospital privileges change from month to month, year to year, so . . .
Lea: I have a problem with this because what is the relevance of any of that with respect to a particular patient thatís the focus of your investigation?
Fetherston: Dr. Mikuriya, you donít have to give this information.
Mikuriya: I want to confer with my attorney.
Fetherston: Fine. Iím sure . . . you can step outside . . . knock on the door when youíd like to come back.
* * *
Mikuriya: OK, well Iím prepared to answer any specific questions about the treatment that I administered with Mr. XXXX, and Iím a licensed California physician and qualified in my area of expertise to render services to the patient. And if you have any specific questions, Iíll be responsive.
Snider: Okay, thanks. Well Iím going to go down the standard background questions and Iíll just do them in order for purposes of the tape . . . The first question is . . .
Lea: Excuse me, Iím so sorry, but what he said is that if you have any specific questions about his treatment of the patient, William XXXX, which is the nature of why weíre here, he will be responsive and would like to answer. So if you have specific questions as to that treatment, we would like to provide you with ALL that information.
Snider: Okay. Thatís good.
Lea: Weíre not giving a general background.
Fetherston: Okay, but just for the purposes of standardization, what we do for every single physician who comes into a conference, is we ask . . . I forget what, 15 questions. So letís go through so that Dr. Snider will go on the record as having asked the questions. You, Miss Lea, can tell your client . . .
Mikuriya: Can I look at them?
Fetherston: No, weíll just ask them. Itís an oral thing so that they go on the tape and in each questions, in answer to each question, if your counsel says you decline to . . . you should decline to answer, you can decline to answer, and weíll go on.
Snider: The first question is where did you attend Medical School.
Mikuriya: Temple University School of Medicine.
Snider: And your year of graduation.
Snider: And your internship ó where and when?
Mikuriya: Southern Pacific Hospital in San Francisco, 1962 - 1963.
Mikuriya: Oregon State Hospital, Salem, Oregon, 1963 to 1965.
Snider: And that was psychiatry?
Snider: Do you have fellowship training?
Mikuriya: And also Mendocino State Hospital, 1965 to 1966.
Snider: Do you have fellowship training?
Snider: Are you Board certified?
Mikuriya: No. Board eligible.
Snider: Board eligible. Do you belong to a professional society?
Mikuriya: Yes I do.
Snider: Would you like to name them?
Mikuriya: California Medical Association, Alameda-Contra Costa Medical Association, Northern California of California Psychiatric Society, Biofeedback Society in California, America Society of Addiction Medicine, California Society of Addiction Medicine.
Snider: Thank you. And if you would just very briefly list for me your practice history, the states where you practiced and the type of practices you finished your training . . .
Lea: Iím going to object. I donít see any relevance to that.
Snider: Would you mind asking a question about your current practice, where you currently locate and the type of practice you engage in?
Mikuriya: I practice psychiatry and medical psychiatric evaluation. I practice at different facilities. Iím headquartered at my house- my home, ____ ________ ___ ________.
Fetherston: Thatís his current address of record.
Snider: And this is full time?
Lea: Tod, I think you should expand on that because of all the other work youíre doing outside of the outsourcing, going to these facilities. And particularly with respect to this patient. And with respect to some of the foundational work youíve done in Humboldt County and San Francisco.
Mikuriya: I do medical evaluation research with different California cannabis centers. As well as am on the staff of Eden Hospital, Vencor Hospital in San Leandro, and San Leandro Hospital.
Snider: And these are full staff privileges, courtesy?
Mikuriya: I just converted from full to courtesy at Eden and I maintain full at Vencor and courtesy at San Leandro.
Snider: Have you ever had your privileges restricted in any way or had privileges revoked or refused at any institution.
Snider: Is there any type of action of that sort pending as far as you know
Mikuriya: Not that I know of.
Snider: Do you have active licenses in states other than California?
Mikuriya: No, I do not.
Snider: Have you ever had any type of action taken against you, or disciplinary action against your license?
Snider: Have you ever been involved in malpractice litigation?
Snider: If you would just very briefly say a sentence about what the allegation was and how the case resolved or was it dismissed or dropped or settled?
Mikuriya: Settled. I believe it was in 1970. I was one of the defendants with Gladman Hospital, UC and a private radiology group for failure to diagnose a serious medical condition.
Snider: And you were the treating physician?
Mikuriya: I was one of them.
Snider: And do you remember roughly the amount you settled for?
Fetherston: An unreportable amount.
Snider: Okay. Are there other suits? Are there any pending . . .
Snider: Have you ever been arrested or committed a felony or misdemeanor?
Snider: Do you use alcohol?
Lea: I would object to this line of questioning. Itís not relevant.
Snider: The next question is do you use other recreational drugs?
Lea: Okay, Iím going to make an objection. Itís not relevant.
Snider: Have you ever been treated for drug abuse?
Snider: Are you currently taking prescription medication?
Snider: Do you mind listing them?
Lea: Iím going to object again. Itís not relevant.
Snider: Have you ever had psychiatric treatment, psychiatric evaluation or hospitalization?
Snider: And your current state of health?
Fetherston: Dr. Mikuriya, I have to question you about that. If your specialty is psychiatry, doesnít that specialty involve as part of your training psychiatric treatment or evaluation?
Mikuriya: I beg your pardon.
Fetherston: Let me re-read a question. Have you ever had psychiatric treatment, evaluation or hospitalization?
Mikuriya: Not as a patient.
Fetherston: Then you answered no.
Fetherston: My question to just make certain that it was understood clearly is that I believed that people when they were pursuing a psychiatric training as part of that all had to receive some evaluation and therapy or something or other as a part of that training. Is that not correct in your case?
Mikuriya: Specifically, itís not correct in my case. I specifically avoided residency programs that had that as a requirement because I felt it to be inappropriately intrusive and of questionable value in many cases. And so the answer is no, Iíve not been psychoanalyzed or have had been subjected to that kind of treatment. But I have performed training psychotherapy with a psychoanalytic supervisor that would discuss the case with me and review it.
Lea: She was referring to specific individual . . . Tod, could you please expand on your areas of specialty and your expertise.
Mikuriya: Well, for forty years Iíve been involved with cannabis research and once upon a time was in charge of marijuana research for the National Institute of Mental Health, Center for Narcotics and Drug Abuse studies. And since that time Iíve maintained files on different kinds of medical issues with regard to cannabis.
Lea: Could you mention a number of books that youíve published with respect to . . .
Snider: I was going to ask about your association with NIMH.
Mikuriya: I was a research psychiatrist in 1967. And I published Marijuana Medical Papers, 1839-1972, and am a co-author of Marijuana Medical Handbook which was published I think in 1998.
Lea: And have you been a Medical Director or held any other work in your capacity as a physician with respect to this whole area?
Mikuriya: Medical Coordinator for various cannabis centers. And also attended the Lockyer Task Force on Medical Marijuana ó all 7 meetings.
Lea: And in fact, werenít you the only medical input that the Task Force got?
Mikuriya: Well, the only consistent one, because the other invited physicians didnít attend or attended once and then no more.
Fetherston: What does it mean to be medical coordinator for a cannabis organization? What is the duty?
Mikuriya: The duty? Well itís kind of like the duty that I attempt to define for myself, which is attempting to get consistent and thorough collection of medical information that documents their need for cannabis, and insisting that the International Classification of Diseases code numbers be collected as well.
Lea: But isnít it also true that you spend an enormous amount of time developing medical criteria and coordinating the information that is available and the documentation that was needed to effectuate the compassionate use of . . .
Mikuriya: Okay, what I did was to formulate a questionnaire based upon pre-1937 medical literature mentions, pharmaceutical literature, and make it into a screening questionnaire with questions regarding different clinical conditions and medical history that the individuals presented with, and how thoroughly or how appropriately they could document the existence of serious and chronic illnesses for which there were seeking a recommendation of approval for the use of medicinal cannabis.
Fetherston: And this service was done for how many cannabis clubs? You were the medical coordinator . . . you said several . . .
Fetherston: Which ones?
Mikuriya: From . . .
Lea: Iím going to object here. I donít think that kind of identifying information is relevant to this. Weíre here to talk about X and talking at this time about the experience or background of Dr. Mikuriya with respect to that; medical services rendered to X, so giving you additional identifying information about that is completely nonrelevant.
Fetherston: So youíre medical coordinator for times which you havenít told us for a number of cannabis clubs the number of which you havenít given to us and any identifying information about which clubs you havenít given to us?
Mikuriya: Thatís correct.
Fetherston: So thereís no way we can verify any of that.
Lea: Thatís your problem. Weíre here to give you Dr. Mikuriyaís background and his experience that is relevant.
Fetherston: Right, thatís relevant. Are there any other things that you think are relevant to our knowing . . . any other things about your backgroundÖ that we should . . .
Mikuriya: Iíve published additional papers and made a presentation at the International Cannabinoid Research Society in Acapulco this June.
Lea: As one of many papers of institutions . . .
Mikuriya: One of 92 papers.
Fetherston: When? Your credit?
Mikuriya: No, 92 papers that were presented at the meeting.
Snider: . . . that were presented at the time.
Lea: But the number of papers at various presentations you made the last four years. Do you have any idea what that would number?
Mikuriya: Different kinds of public presentations and publications have been probably -- a dozen.
Fetherston: So itís the International Canabinoid Research Society.
Mikuriya: And I have a website for my writings. www.mikuriya.com/althealth.
Snider: Thatís different than your own one and drug sense?
Mikuriya: Thatís the other one, dealing with Health and Safety Code § 11362.5 issues.
Snider: Thatís drug sense?
Snider: So the althealth is a-l-t-h-e-a-l-t-h, altogether no dot.
Mikuriya: Thatís correct.
Snider: So, anything else?
Fetherston: If something comes to mind and itís something we always say when we conclude an interview with a physician is if there are other materials you want to make available to us, if you want to send me a reprint or something you want to add to your file or statement you want to add to your file after weíre done, or on the way home you think of something, youíre welcome to send it to the address on our cards and . . .
Mikuriya: You may take one.
Fetherston: So the next thing we usually do . . .
I just wanted to say that if you wanted to provide the list of publications . . .
Mikuriya: Iíll forward that to you.
Snider: Youíre welcome to do so and it will be included in your file if you wish.
Mikuriya: Well, Iím referencing my website . . .
Snider: I understand youíre referencing your website, but if you want to provide something to be bent, folded, spindled and mutilated that would be fine.
Mikuriya: You can download it . . . hundreds of pages from the internet if you so desire.
Fetherston: That would be nice if they ever supplied . . . if the Medical Board ever supplied investigators with internet access. Itís something you might want to bring up in your . . .
Mikuriya: When they ask us for another dues increase to support your activities? [ironic laugh]
Snider: That would be wonderful. I agree that itís a prime investigative research currently at least in the State of California, if not internationally. But the Medical Board hasnít chosen to provide that.
Mikuriya: Who on the Medical Board? Yes, I know, you canít disclose it.
Fetherston: Well, you know, I tried to find that out and was very, in my opinion, very huffily told "management".
Mikuriya: OK, where does Mr. Thornton stand and whatís his hand in all this?
Snider: I donít know.
Mikuriya: Because he attended some of Lockyerís Task Force meetings.
Snider: You would far better know than I.
Snider: Letís get back to the business at hand here. Generally at this point once weíve obtained your background information, is to have you give us as a physician a sort of overview of who the patient is. In a very brief form, three minutes, five minutes, so that I have an idea as we view the video and go through the medical record of who this person is, how you came to know him, how he was referred to you, the extent of your treatment of him and anything pertinent that might not be in the medical record that you think is important for us to know. So, if you could maybe just say some . . .
Lea: You would like him to expand on whatís in writing?
Snider: Right. Also to start out with a little . . .
Fetherston: . . . as it comes to you . . .
Snider: The way you would if you were presenting him on rounds in three to five minutes . . . Mr. X was referred to me by so-and-so. I first met him in 19-blah-blah, so that I have a little background and context to put further questions into.
Mikuriya: Okay. I was requested by this patientís caregiver a 56 year old white divorced male to perform a home visit . . .
Snider: Thatís the caregiver youíre characterizing? You were requested by . . .
Mikuriya: No, no, no. The caregiver of this profoundly disabled 56 year old Vietnam veteran suffering from advanced multiple sclerosis who is totally bedridden and homebound and I performed a home visit and attempted as best that I could to communicating through his caregiver to give data about his condition. He was disabled since 1982 with progressive diminution in his mobility and has been bedridden for . . . I believe the past several years. Iím not sure when he regressed to that point. His mother was born in 1913 and is deceased, his father died at age 45 of liver cancer and there was a question of alcohol abuse. He did not come from an alcoholic family. He had no referable . . . or no known allergies. His illness was multiple sclerosis, in which he experienced the first symptoms in 1977, and had discovered that in addition to his current medications of Baclofen, 10mg BID or TID and Ativan 1mg @ HS, that he discovered cannabis was useful back in 1979, that he utilized it primarily orally for control of his very poorly controlled muscle spasms and used this form of cannabis two or three times a week, depending on his level of spasticity.
Snider: And do you know how . . . well let me let you go ahead and finish then Iíll ask a few clarifying questions.
Mikuriya: I performed a ó I visualized him, I saw him, and did a short segment of a videotape for identification purposes to include in my records.
Lea: The past medical histories?
Mikuriya: Pardon me?
Lea: The past medical histories, letters from prior doctors . . .
Mikuriya: Oh, yes. I reviewed the records from his other treating physicians which confirmed and elaborated on the findings of this profoundly incapacitated person.
Lea: And you interviewed the caretaker . . .
Mikuriya: I interviewed of course the caregiver, who was in attendance at the interview because of the severe dysarrthria that the individual suffers that I think will be apparent on the video tape.
Snider: How did you happen to get the other physiciansí records.
Mikuriya: The conservator provided them for me, Mr. Y
Snider: And do you have the date that the visit ó 11/1/98?
Mikuriya: Right. And I tried contacting him subsequently - without success because there was a change in his caregiver. And I only had the home number that was used by his then-caregiver, which was changed.
Snider: So this 11/1/98 visit was your sole contact with this patient?
Mikuriya: Yes, that is correct.
Snider: And you conclusions and recommendations on that?
Mikuriya: That he suffered from serious illness that was chronic, severe and warranted recommendation and approval of use of medicinal cannabis for which he described, use, or utility or usefulness in controlling his muscle spasm and anorexia . . .
Fetherston: Oops! We havenít had that mentioned before.
Mikuriya: I didnít mention it. I just kind of gratuitously through that in from my memory, so itís not documented. I did not put down the word anorexia.
Snider: See, thatís the kind of thing weíre interested in . . . things that may not be in the record that you do recall or expand on your memory.
Mikuriya: Okay. Well, one of the things that was of concern was the way this complaint apparently took place that I still, because of your protocol, that who initiated it and what the reason was, what motivated this, but as far as I knew the patient did not express any dissatisfaction with my services and my providing the letter of recommendation and approval of him. I donít know what involvement with his subsequent caregiver and conservator and how that played into this- what appears to be a malicious referral by unknown persons within Napa County, the criminal justice system, which is the same etiology of complaint in general of the criminal justice system that got me here the first time over a Marinol prescription, which, by the way, is being down-scheduled to schedule-three.
Snider: Back to your interview of the patient, how long would you estimate that contact -- patient contact lasted?
Lea: On 11/1/98?
Mikuriya: I believe it was roughly . . . five minutes directly with the patient and half an hour with the caregiver.
Snider: Are there other questions that you asked other than questions that are in your documentation? To ask directly of the patient?
Mikuriya: I donít recall.
Snider: Did you do any type of physical examination?
Mikuriya: I looked at him and there he was lying in bed as youíll see on the video tape. In semiÖ He looked relatively comfortable but he needed to be attended for all of his ADLs.
Snider: Did you make any assessment of mental status as far as uh . . .
Mikuriya: Yes, he was able to with great difficulty give me details of his family history, but it was really painful to attempt to elicit to this information from him because of his severe dysarrthia.
Snider: How Ďbout mood and those other sort of things?
Mikuriya: His mood was free from agitation or depression, and he knew what I was there for -- the purpose of the visit and my questions.
Snider: And suicidality, those kinds of things?
Snider: Did you question him about that?
Mikuriya: It was really difficult to elicit answers to these kinds of specific questions from him because of his incapacity.
Snider: Could he nod or shake his head?
Mikuriya: Oh Sure, but he made great effort to verbalize, which was frustrating for him.
Snider: Well I understand from what youíre describing the level of his disability I know it would be difficult to execute a suicide attempt but Iím wondering what his thought processes were on that.
Mikuriya: No way, nothing of that nature came out.
Snider: Had he ever had a psychiatric evaluation or anti-depressant or those kinds of medications?
Mikuriya: Iíll review these records again.
Snider: Youíre looking at prior doctors information which you got from the then-conservator, right?
Lea: Not that the circumstances of his quality of life should have affected his mental state. Gees I donít think that if I were so incapacitated that I would be depressed.
Fetherston: I met him. Heís a remarkable man.
Snider: So weíre not certain about whether heíd ever been under psychiatric care or psycho tropic medications. Now is this document . . . is this your handwriting? Do you know normally complete. . . is this your standard history form?
Mikuriya: Yes it is and I usually have the patient complete it.
Snider: That was my question is, under normal circumstances.
Mikuriya: Under normal circumstances, but because this was an interactive type of interview I had toÖ
Snider: And I guess my other question is about whether there was other information obtained. If the man hadnít been disabled, what is your usual practice?
Mikuriya: To review the written statements of the patients and to attempt to elaborate on them as much as they can and annotate.
Snider: So you had someone complete this in advance and then you go over with them personally?
Mikuriya: Thatís correct.
Snider: And are there any other standard questions that you ask?
Mikuriya: I canít think of any.
Snider: Did you ask him each of these things? Have you ever had any fractures or dislocations . . . these things that donít have any writing beside them?
Mikuriya: No, I had to take those from the previous records because of, or attempt to reconstruct it from collateral medical histories and documents.
Snider: Although we havenít looked at the video yet, when you talk about the five minutes and about 30 minutes spent with the conservator, is there any way to tell which questions were answered by the patient versus which questions came . . . which answers came to you from another source?
Mikuriya: I donít remember.
Snider: Maybe, but maybe the video will help with that. And then the relief of the muscle spasms with the cannabis. How long has that . . . I note he discovered it useful in 1979 . . . but his symptoms . . .
Snider: Okay, it started a couple of years before that. Was this two to three times a week use? (Beep) Let me just start a tape.
Fetherston: And the technology . . . letís take a break for water or the restroom or any of that. Relief of muscle spasm.
Snider: Okay, side two.
Fetherston: We leave the muscle spasms question.
Snider: Do you know the two to three times per week usage, do you know the duration of that? Is that a more recent level of use or has that been since 1979 . . .
Mikuriya: These are contemporary amount of use.
Snider: And how was that prepared for him, since . . .
Lea: Iím going to object to that question. Actually I want to speak to Dr. Mikuriya out in the hallway.
Snider: Okay, take a break.
* * *
Snider: Figure this out after talking to Dr. Mikuriya [inaudible]. Is that right?
Snider: Am I stating that correctly?
Lea: No, I said from the literature, Dr. Mikuriya had obtained it appeared that Mr. Y had the patientís best interests at heart.
Snider: Okay, that literature is the prior doctorís notes? Is that correct?
Lea: And Mr. Yís letters.
Fetherston: Is that part of what we got as the files is what Iím trying to figure out?
Fetherston: We have 18 pages of material.
Lea: Well I read what you were given and thatís where I got my . . .
Fetherston: But thatís your opinion on the papers that we already have. Iíve just tried to clarify the [inaudible].
Lea: Iíd like a chance to finish what I was saying . . .
Fetherston: But we donít want you to give your opinion is my point. If we have all the information on which youíve reached that conclusion, we have the same material that we will ask our expert to comment only Dr. Mikuriyaís . . .
Lea: Thank you, thank you. Iíd like to finish my sentence. Which is that Dr. Mikuriya explained to me that he had the same impression of Y as I got from a reading of his communications.
Snider: Is there anything else that youíd like to go on record as saying, Dr. Mikuriya, as far as your assessment of his physical state, cleanliness, the state of the house, the relationship between the caregivers and the patient, how people treated him.
Mikuriya: He appeared to be clean and appeared to be well-cared for. But again, I didnít lift the covers to make him feel cold as his body is somewhat contracted.
Fetherston: Did you ask him if . . . anybody . . . did you . . . you never talked to him about somebody else who rendered the care. The conservator was always in the room?
Mikuriya: No, the conservator was in the other room for part of the . . . well, I donít know what he was doing but, when I was with Mr. Y- I mean Mr. X- it was the younger female person and I donít recall whether the other male was in the room.
Fetherston: Did you ask him if he was being mistreated?
Fetherston: Do you have any questions?
Fetherston: Dr. Mikuriya, I wrote down here that you said that . . . uh . . . one of the services you provided for Mr. X was that you provided a letter of recommendation and approval. I donít find that in the 18 pages that we were provided as part of this.
Mikuriya: It would be on the video tape.
Fetherston: You provided a letter of recommendation and approval which is a written document, right?
Fetherston:And then you made a video copy of it. Would this be the document, a copy of the same document?
Mikuriya: It appears to be.
Fetherston: That this thing that is headed "California Compassionate Use Act of 1996 Health and Safety Code section 11362.5
Lea: Pursuant to the Compassionate Use Act
Snider: I guess I have one more question for completeness sake conclusion, reccommendation is it written in the chart the diagnosis and plan of treatment
Mikuriya: That part of the plan was not filled out, unfortunately.
Snider: Do you want to give it to me verbally What was your medical impression?
Mikuriya: Severe advanced multiple sclerosis
Snider: And your treatment plan?
Mikuriya: To do follow up interview.
Snider: And what would be your time frame?
Mikuriya: Perhaps six months to a year.
Snider: Did you make any recomendations about his altering his pattern of use?
Mikuriya: No because I felt that taking it orally was really a very optimal way of doing this.
Snider: And the frequency?
Mikuriya: Yes, I thought that was quite appropriate.
Snider: That the oral route was optimal and the frequency appropriate?
Snider: And you didnít really make a recommendation of any change.
Mikuriya: No, but that he does suffer from a serious chronic illness and I believe qualifies him for inclusion under protection by Health and Safety Code 11362.5.
Snider: From your background studies, research, whatever; what happens to Multiple Sclerosis painful spasm when they ingest cannabis?
Mikuriya: Theyíre relieved.
Snider: What does that mean? A spasm is a jerk.
Mikuriya: It lowers the intensity and the frequency on how much and what type of cannabis ingestion as well as other factors such as sufficient nutrition ventilation, temperature, environment.
Snider: Thatís right, MS people are uncomfortable when itís hot, right? Yes. Did you make any other general recommendations about mental healthÖ.
Fetherston: Nutrition, talking about nutrition? Was he getting proper nutrition?
Mikuriya: He did not appear to be suffering from inanition. The answer is no.
Fetherston: So you just made itÖ
Mikuriya: The focus of the interview was to determine his eligibility under Health and Safety Code 11362.5 and including him in my practice for continuing monitoring and updates.
Fetherston: Did you see your role with this patient as a narrow scope rather than treating this MS patient?
Fetherston: You were not becoming his primary care physicianÖ.
Fetherston:Ö. and you were not substituting for some other doctor. Whatever, Iím not familiar with the drugs he was takingÖ
Mikuriya: Baclofen and Ativan.
Fetherston: Those are prescription drugs. Some other physician was writing the prescriptions. You werenítÖ
Mikuriya: But according the caregiver, the physician left town or was no longer available. I didnít try to verify this. If they couldnít find another doctor in NapaÖ.
Fetherston: But you werenít asked to take over as the prescribing doctor for written prescriptions at the local pharmacy.
Lea: It sounds as if there may be ignorance with respect to 11362.5
and the documented scope of the physicianís responsibility or participation
with respect to the statute. Perhaps that would be helpful.
Perhaps we can look at the video tape unless you have any more specific questions about the actual patient...
(Video shown. Audio channel defective)
(Unable to get it to work.)
Fetherston: I donít think the problem is with yourÖ.
Mikuriya: Iíll stipulate to that.
Fetherson: Something we can all agree on.
I wanted to clarify for myself about how you define your relationship with the patient, Dr. Mikuriya.
Mikuriya: A second opinion, being asked for a second opinion. A consultative role. Primarily, which is my role in all these other cases that I consult on are institutionalized for different psychiatric issues that come up. Treatment: for example at Vencor hospital somebody is on a vent and in the process of being weaned and showing psychiatric signs so Iím called in and asked to change the meds frequently or to provide psychotherapy as tolerated. But many patients are severely impaired with multiple medical problems.
Fetherston: Would you consider yourself his treating psychiatrist?
Fetherston: Youíre providing a psychiatric consultation?
Mikuriya: A psychiatric and medical evaluation in terms of the question specifically " he suffering from an illness or condition that would make it possible for me to in good faith issue a statement of recommendation and approval.
Fetherson: OK, OK. I think I understand.
Lea: I would like to suggest that the questions leading.. more than suggest the answer and, in fact, that the entire dialog taking place over the last half hour is much more destructive of how Dr. Mikuriya sees his relationship rather than categorizing.
Mikuriya: Its really difficult to know what youíre looking for because of not being presented with the complaint or the reason for being here. Its flying blind. Itís like swimming in a dark pool with piranha fish swimming about. Itís certainly not fair.
Fetherston: Well the information in your chart which- my role remember, my title is investigator so I have not been to medical school or law school but I look for a history and physical on a doctorís visit. And it doesnít look like any. The chart is absent any history and physical that resembles any that Iíd seen in any other chart.
Mikuriya: Well, you know you wouldnít if you went to the hospital and looked in the progress notes in the chart and the initial evaluation with regard to the patient when Iím approaching the multiple medical systems clinical problem does not include that component.
Lea: Thatís true.
Mikuriya: And I definitely am documenting the mental status or make comments about kinds of medication but I defer always to the attending for modification of treatment for any other area. So it is more of a medical psychiatric consultative process.
Fetherston: In regard to that did you speak with any other medicalÖ. Thereís a fellow that closed his practice and left town contact with any of the treating physicians and is it your practice?
Lea: Iím going to object again because it asks for general answers.
Fetherston: Do you routinelyÖ.
Mikuriya: Iím going to defer to my counsel.
Fetherston: Hereís a question that I have. When youíre wearing your hat seeing patients for assisting them- I donít have the right vocabulary for thisÖ When you produce a document that starts off "Physicianís statement" The document like this thing I have labeled #4, when you produce those docments do you routinely send a consultative notice to the patientís primary care physician: thank you for the referral I have seen Joe Smith today, blah, blah.
Mikuriya: If requested.
Fetherston: What percentage might have requests?
Lea: Iím going to object. Again, weíre on a fishing expedition here. Weíre looking for..
Fetherston: Weíre trying to get a pattern. Ö.Youíre right. Youíre right. Fine.
Lea: Weíre not interested to.. Weíre here about a patientÖ
Fetherston: All you have to say is "I donít want him to answer". Thatís fine.
Lea: I think we have provided more than adequate information about the patient which isÖ
Fetherston: I have a question specifically about this patient. In your discussion with this patient did you tell this patient risks as well as benefits about marijuana?
Mikuriya: What kinds of risks?
Fetherston: Iím not telling you what kind of risks. Did youÖ
Lea: The question assumes that there may be risks. If you donít believe there are risks. The questionís one of the "Did you beat your wife last night?" Sheís asking you something that may or may not have any relevance to what youíre doing. If you donít think thereís risk and heís been doing it since 1979. And it was your professional understanding when he was sitting thereÖ
Mikuriya: I usually make statements regarding preference that people take it orally to reduce the risk of irritation to the tracheobronchial tree and said something to that effect- approving the way he was ingesting it.
Lea: Do you have any specific questions?
Fetherston: (to Snider) Do you have other questions on this? I will tell you that I have interviewed this patient and this patient absolutely denies ever having used- ever, ever, ever marijuana- ever.
Mikuriya: Hmm! [surprise]
Fetherston: And was highly insulted at the whole idea saying you canít run a submarine if you smoke dope. And has absolutely never used marijuana. And two to three times a week isÖ. Who knows where it came from. After today I donít know where it came from. I canít tell from our interview from you whether Mr. Y told you that in the presence of the patient or outside of the presence of that or where that number came from because the patient absolutely, up and down, straight out denies ever having ingested in any way any marijuana.
Mikuriya: Iím shocked!
Lea: Was the female caregiver present when you interviewed him?
Fetherston: I wonít answer that question. I interviewed the patient. I didnít go through somebody else. It was the patient. Patientís very difficult to understand but the patient can be understood.
Lea: But was the female caregiver present?
Fetherston: Iím not answering that question to you.
Lea: Because you donít want to actually disclose accurate information.
Fetherston: Iím telling Dr. Mikuriya I interviewed the patient. Well hereís another question and answer on this document. It says first discovered useful 1979. Is that a total fabrication? And the patient said "Well I may have read something about marijuana in about 1979. But I have never personally used it- period. And guess what else the patient told me. "I have no pain. Zero pain, none whatsoever associated with my illness. He said I donít discount that at sometime in the future I may have pain but as of now and the history of my disease. It has never involved any quotion of pain.
Mikuriya: Well Iím shocked. Shocked by these findings and have no explanation for them.
Lea: Did the patient suggest that Y responded and was the source for all the information that Dr. Mikuriya had or is your unsurmisedÖ Did the patient suggestÖ.
Fetherston: I only asked the patient about the entries on what I had as Dr. Mikuriyaís record of the patient. I didnít discuss any third parties. I talked to the patient about patient whatís your condition. And patient, what these papers say doesnít agree with what youíre telling me. Are you sure what youíre telling me and Ė and the patientís age- date of birth Ė is wrong on your page. The month and date are correct but the year is a year off.
Mikuriya: Iím at a loss.
Fetherston: So that..
Lea: Well this was taken on 11/98 then on the audio portion.
Fetherston: Thatís the kind of thing. You know Iíve talked to the patient and the patient has a different history thanÖ
Lea: Let me ask you a question. Did the patient ingest any medicinal cannabis as a result as Dr. Mikuriyaís visit on 11/1/98?
Fetherston: Absolutely. Never. Thereís no marijuana in the manís life as of the date that I interviewed him which has been within the last month- maybe 6 weeks- Iíd have to look up the date. But long past.
Lea: Did he remember meeting Dr. Mikuriya?
[short exchange deleted to protect identity of bystander]
Re: The Bogus physicianís statement that had been distributed at a rock concert, "Reggae on the River"
Snider: We have another matter.
Fetherston: Yes, this other thing thisÖYour fax that you sent to us. In writing the fax it says the following is forwarded to me by Lenda Hand of Redway. Is Lenda Hand an institution?
Mikuriya: No, an individual
Fetherston: Is that a personís name?
Fetherston: Is that a male or a female
Fetherston: Lenda Hand of Redway took this from an unidentified male at Reggae on the River concert last Saturday. OK. Who has the original of this document?
Mikuriya: I donít know where the original is.[laughs]
Fetherston: It was provided to you by fax.
Mikuriya: Yes. It was provided to me by fax.
Fetherston: How can I contact Lenda Hand?
Mikuriya: Her fax number is right there at the top.
Fetherston: This says Humboldt Hemp Foods? Is Humboldt Hemp Foods affiliated with Lenda Hand?
Mikuriya: Must be a store in Redway. Sheís part of another organization CLMP Civil Liberties Monitoring Project which tracks the CAMP invasions.
Fetherston: But you donít have a phone number other than the fax. If you needed to find her would you just write her a fax?
Lea: She did this as a favor. She found this and wanted to ascertain if it had any authenticity and Dr. Mikuriya was shocked to find that somebody had created this. He wanted to alert you to this fact because obviously there is from your questions some import with respect to the ignorance around the Compassionate Use act and the patient XXXXXXX. So he was letting you know that this kind of thing does occur. Itís out there. He did not instigate this. This is not something he did. This shouldnít bear any weight on his credibility.
Fetherston: Is this signature?
Mikuriya: Thatís one that was copied from some other document of mine.
Fetherston: Because it does look like your signature.
Mikuriya: Sure. It appears to be but it is not an original or bona fide one.
Lea: You have exhibit 4 as you describe it. If you knew somebody who had something like this you could easily remove the signature from that document and stick it on to something similar to the document faxed to you by Dr. Mikuriya.
Mikuriya: So concerned was I that I faxed copies to Police Chief of Arcata, Mel Brown and DA in Humboldt County Terry Farmer. Because I feel that this is a real slur against me.
Fetherston: You, not you so much as your counsel appear to be offended at the questions about this but this but this is where itís my role here. Iím the investigator. If weíre talking about a forgery we need to find the original. Then we need to have the person whose signature has been forged prepare an afidavit and prepare a handwriting exemplar that says "this is how I sign my name" blah, blahÖ
Fetherston: Just a moment. I have the floor for a moment. This is how I investigate a forgery. And if something like this is floating around in your name. Letís pretend itís a scrip pad- its not, but letís pretend it is- we would take the same investigative efforts to determine where it came from.
Mikuriya: Good. Wonderful. Appreciate that very much.
Fetherston: That we would do anything else. If a physicianís signature is being forged on a document that can be validated only by a physicianís signature. We want to know about it and we want to investigate it.
Mikuriya: Alright. Lenda Hand is the person to start with because she became aware of this when she was at Reggae on the River.
Fetherston: Which is- let us call it a rock concert- some outdoor activity which happened in the middle of August.
Fetherston: But in your fax you said since then one individual phoned me to get an appointment and another presented himself to the Humboldt Cannabis Center. The director, Don Landry confiscated the document and filed a police report with Mel Brown. OK, help me to follow up on that little deal. OK. One individual phoned me to get an appointment. Thatís somebody from the outside world calling you, Dr. Mikuriya?
Mikuriya: Called my office requesting an appointment.
Fetherston: OK. Why did you think that was going to be different than anybody else calling for an appointment?
Mikuriya: Because they mentioned to my assistant that had gotten one of these.
Fetherston: Ohh.. OK.
Mikuriya: And wanted to follow up on it.
Fetherston: Did you keep the name and contact of that person. OK, let me stop right here before you answer that. If that person became your patient then we run into a doctor Ė patient confidentiality problem.
Mikuriya: No. The person didnít.
Fetherston: If the person did not become your patient then we- I donít think Ė have a doctor patient confidentiality problem. But you can talk to your lawyer about this after our conversation. Iíd like to follow up. Iíd like to contact the person looking for these forged documents. Hi, Joe Blow. Howíd you get around to it? When you get around to it. So after this is all over with, you know, send me a little postcard, a letter, or a fax, or something. Not an email because we donít have that either. [laughs]
Lea: You can do it. You can have your staff get all this information to make it easy for Karin.
Fetherston: Because I will look into these forged documents that popped up. And not that anybody is thinking about them when they get them. But you know, the less handled they are the better.
Lea: Youíre right. Itís the document that is forged. The signature, I believe, is lifted from an original signature.
Mikuriya: Then again itís a misrepresentation that itís my document.
Fetherston: Let me think aboutÖ. Weíre deep into the forgery laws here. Anytime your signature is used without your knowledge or permission it becomes a forgery.
Fetherston:What youíre saying is.. Ms. Lea, If I can find this original document it might be the original signature of Dr. Mikuriyaís?
Lea: No, thatís not what Iím saying at all. Iím saying that you can take the signature from- I mentioned your exhibit 4 you have in your file over there. That signature could be lifted from exhibit 4 and put onÖ.
[tape runs out]
Fetherston: And then the copy is that you . . . also about that another person presented himself to the Humboldt Cannabis Center and the director confiscated the document and filed the police report with Mel Brown. So either Mel Brown or Don Landry probably has that one, right.
Fetherston: Okay, I think with the Humboldt Cannabis Center and
. . . okay Mel Brown . . .
Lea: But thatís run by the Sheriffís Department there.
Fetherston: But Mel Brown is Chief of Police?
Mikuriya: Chief of Police of Arcata.
Lea: And Iím sure they would cooperate with you Karin.
Fetherston: Uh-huh. Nice drive.
Mikuriya: Okay, so thatís what itís all about. Now weíre getting to the real motivation.
[laughing; inaudible Ė several trying to speak at once]
Lea: Napa. Humboldt
Mikuriya: Do it before the rains begin
Fetherston: Did you have additional . . . anything?
Fetheerston: I had it before me just before you walked out the
door. I wonít ask about handwriting exemplars and all that junk, I donít
think is valuable information. Unless or until . . .
Mikuriya: Iíll stipulate to that.
[pause, then tape picks up in mid-sentence]
Mikuriya: . . . that may know something about this to give me information and to try to identify the parties including, as I mentioned before, the DAís office up there in Humboldt County, including the Sheriffís Department up there. I immediately filed a police complaint, a police report with Humboldt County Sheriffs when I discovered this, and they directed me back to Berkeley and said go file it with the Berkeley PD. And the Berkeley PD were mystified and said less than salutary things about the Humboldt Sheriffís office. So again I went back and again they rebuffed me, wouldnít take it. I tried to leave a report and so I gave up and went to Terry Farmerís office, the DA. And so . . .
Fetherston: Thatís in Humboldt?
Mikuriya: Thatís in Eureka, a city in Humboldt County.
Fetherston: Well, thank you very much.
Fetherston: The business with Mr. XXXXXXXX will go to expert and then weíll get it back and let you know, but it probably will be at least six weeks before I know anything.
Fetherston: So off and away.
Reviewed and corrected by THM 101099
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Tod H. Mikuriya, M.D. Biography Cannabis Drug Policy Social Policy