Doctors walk a legal line in prescribing marijuana

November 04, 2006

Lisa Leff, Contra Costa Times

When Dr. Mollie Fry opened a storefront clinic next to the only post office in this Gold Country town, she did not think that telling her patients where to get the medicine she recommended for pain, depression and nausea would be a problem.

The federal drug agents who raided her home and office thought otherwise. So did the grand jury that indicted Fry last year on felony charges of conspiring to distribute marijuana.

"I assumed the fact that I had 'M.D.' at the end of my name gave me the right to make judgments about people's health," said Fry, who estimates she has issued thousands of cannabis recommendations since setting up her thriving practice northeast of Sacramento in 1999.

Since California passed the nation's first medical marijuana law a decade ago, among the provisions that has been tested in courts, and proven troublesome in buyer's clubs and clinics such as Fry's, is one requiring ill patients to obtain a doctor's written approval before they can legally grow or buy pot. The tension between the mandate and federal drug laws that presume marijuana has no medicinal value has left room for plenty of errors and trials, as well as confined the conventional doctor-patient relationship.

Until the stalemate is resolved, doctors recommending marijuana do it with trepidation and a good deal of risk.

Medical marijuana advocates estimate that 1,500 doctors have authorized pot for at least one patient, most of them oncologists or AIDS specialists. But the vast majority of recommendations have come from a close-knit cadre of about 15 self-appointed specialists, the so-called "pot docs" who charge $150 and up to walk what the California Medical Association calls "a gray area between the clearly permissible and clearly impermissible categories of action."

Following complaints by local law enforcement, just about all have been investigated by the state board that licenses and disciplines physicians. Four were doctors who devoted their practices to acting as medical marijuana consultants and ultimately received sanctions ranging from the public rebuke that Fry got to having their licenses suspended.

California's medical marijuana law, also known as Proposition 215, established a pivotal role for doctors in the measure's implementation, holding that seriously ill patients had the right to use pot "where medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit."

The law named a host of ailments for which marijuana might prove helpful in easing symptoms: cancer, anorexia, AIDS, glaucoma, arthritis, migraine. And unlike the medical marijuana laws that would eventually be enacted in 10 other states, the California measure also gave doctors discretion to certify patients with "any other illness for which marijuana provides relief."

That vague language left it up to doctors to decide what constituted a serious illness for which marijuana was the best treatment option and opened the door for recommendations being given to people who did not need them.

David Thornton, executive director of the California Medical Board, said an obvious red flag for the agency would be a doctor whose patients are primarily men between the ages of 18 and 25. But he allowed that until the board issued guidelines two years ago outlining what constituted "accepted medical standards" under the 1996 voter initiative, physicians pretty much had to figure it out on their own. Most concluded it was not worth the risk.

"The role of physicians was not that clearly explained (in the 1996 law), although it was left to physicians to be the ones, in their informed opinion, to determine whether a patient would benefit from marijuana," Thornton said. "Until federal and state law are harmonized, it's going to be difficult."

Although a federal appeals court ruled four years ago that the U.S. Drug Enforcement Administration cannot go after doctors merely because they recommend marijuana to patients, the state medical board's guidelines make it clear the ruling did not amount to immunity either from prosecution or disciplinary proceedings.

The board advises doctors, for instance, that relying on a patient's word instead of prior medical records to determine whether a marijuana recommendation is appropriate could constitute medical negligence. Failing to conduct an independent exam or to consider whether another drug would be just as effective could similarly lead to charges of unprofessional conduct.

The California Medical Association is even more explicit, warning doctors never to tell patients where to get pot and urging them to remind patients of possible side effects. Discussing dosages with patients, opining on whether they should smoke or eat marijuana, and signing a form that enables patients to obtain a state-issued medical marijuana ID card also are steps the medical association cautions its members to avoid if they don't want to end up like Fry.

Frank Lucido, a Berkeley family physician who devotes about 30 percent of his practice to working with medical marijuana patients, said he abides by those recommendations, but thinks pot docs are being held to higher standards than doctors who prescribe lots of Viagra, prescription painkillers and other abused medications. Doctors who prescribe sleeping pills for patients who complain of insomnia, Lucido noted, are not at risk of being called quacks if they don't do a hands-on exam or develop a long-term treatment plan.

"Neurosurgeons do a lot of brain surgeries. Are you going to call them brain surgery mills?" he said.

One outgrowth of Proposition 215 was the creation of a state-funded research center at UC San Diego that has jump-started federally supported clinical trials on the uses and risks of medical marijuana.

Igor Grant, director of the Center for Medicinal Cannabis Research, said the results have been promising, in reducing inflammation and muscle spasms and treating conditions such as high blood pressure and multiple sclerosis. By studying the brain receptors that stimulate appetite when exposed to the chemicals in marijuana, scientists even are looking into possible treatments for obesity.

Grant predicts that if the research continues, the debate about the proper role for doctors in recommending marijuana for patients will be rendered obsolete by sound science and the development of marijuana-based drugs that can be prescribed with confidence and without fear. He compared where the country is now with medical marijuana where it was a century ago with opium.

"Opiates are known to be lethal, yet we have a way of dispensing them to patients who need them and avenues to do research," he said. "Marijuana has been stuck in this closet for a while for various reasons, but I think it will come out of that."

In the meantime, Fry, 50, who is awaiting trial, continues signing recommendation forms for patients who come to see her from across the state. She no longer sells her patients starter plants, but freely tells them about what she sees as the spiritual, emotional and economic benefits of growing their own pot.

"What did I take an oath to do? To do no harm and to alleviate pain and suffering," Fry said. "I'm going to be true to my oath, and I'm even willing to go to prison for it."



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