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Medical Board Should See Her Patients’ Files, Says Dr. Marian Fry

by FRED GARDNER

California Assemblywoman Hannah-Beth Jackson and State Sen. John Vasconcellos moved Aug. 11 that the Joint Legislative Audit Committee determine whether the state medical board has been investigating doctors for no other reason than that they specialize in cannabis consultations. The medical board is the state agencies that issues doctors’ licenses -and can revoke them. At least nine of the 15 cannabis consultant MDs have been investigated; it’s a costly, time-consuming, stressful ordeal no matter what the outcome. None of the complaints triggering the investigations have come from patients in the almost eight years since Prop 215 passed; it’s disgruntled law enforcement officers who are siccing the Board on the pro-cannabis docs.

The request for an audit fell one vote short because Sen. Kevin Murray, a Southern California Democrat, didn’t show. We asked a reliable source if Murray’s absence was a matter of political ambivalence or sheer negligence and were told that it was the latter, with some pejorative adjectives thrown in. This was a costly screw-up, a missed opportunity to expose the criteria by which the Board’s Enforcement Division decides which doctors to pursue.

Last week Marian Fry, MD, appeared before Administrative Law Judge Ruth Astle in Oakland to ask for dismissal of the Medical Board’s case against her on the grounds that her files had been obtained improperly. Fry, who does cannabis consultations from an office in Cool, California, was represented by attorney Lawrence Lichter.

The Attorney General’s office, representing the Medical Board, accuses Fry of providing substandard care to five patients. “Every patient I’ve been asked about by the medical board has passed through the criminal justice system in either El Dorado or Sacramento County,” Fry says. “The complaints all came from district attorneys, not the patients themselves.”

The three patients named in the accusation with whom Fry is still in contact refused to release their files to the Board, and she assumes the others would have, too. Conveniently for the Board, the federal Drug Enforcement Agency had raided the home and offices of Fry and her husband, attorney Dale Schafer, in September, 2001, confiscating 24 file cabinets containing 6,000 patients’ records. The Board acknowledges that it obtained Fry’s records from the DEA.

Lichter was able to site a section of the California penal code listing the steps that have to be taken before law enforcement agencies can share medical information. Fry’s prosecutors downplayed the significance of the statute, arguing that “law enforcement agencies share information all the time,” and that it had been done “pursuant to statute.” But the statute they cited was a federal law authorizing the DEA to release information, not authorizing a state agency to receive it.

Judge Astle expressed concern about the Medical Board obtaining records without patients’ consent, or a warrant, or a subpoena, or the involvement of a judge. She requested more briefing and continued the hearing on the motion to dismiss till October 1.

Leveque’s Unspoken Testimony

Just as in California very few doctors were willing to approve the medical use of marijuana after the voters made it legal in 1996, so, too, in Oregon there was widespread reluctance. In fact, only one doctor was known to have a fearless, unbegrudging attitude: Phillip Leveque, DO, PhD. And so Leveque, a 78-year-old PhD pharmacologist and doctor of osteopathy, immediately became the doctor of last resort for Oregonians whose regular doctors wouldn’t sign their applications for state-issued medical marijuana cards. Or who didn’t want to ask, or didn’t have regular doctors.

Leveque’s license was suspended for three months in 2002 because he hadn’t been conducting physicals (which were not explicitly required) or keeping records (for security reasons). The Board created “the Leveque Rule,” insisting on physical exams, and Leveque hired a physician’s assistant to conduct them when he resumed practice. But his license was suspended against last December, and he is convinced that the medical board is out to get him as payback for the dent he made in Prohibition.

This Saturday Leveque will be speaking in Fort Bragg at the Medical Marijuana Patients’Union conference. He wrote the following speech for presentation to the House Government Reform Subcommittee on Criminal Justice, Drug Policy and Human Resources, after being invited to testify on April 1.

Mr. Chairman, members of the committee and hardworking staff;

Thank you for inviting me here today to dispel many of the myths about cannabis — which has in fact been used as medicine for at least five thousand years.

Let me introduce myself by saying that I am a World War II veteran and survivor of General Patton’s army; I was a scout and point man in the infantry. Today I am taking care of more than 500 veterans of all wars, including World War II.

I have been a professor of Pharmacology and Toxicology for 25 years in ten different medical schools throughout the United States, including Georgetown University, and I have studied cannabis for more than 50 years.

Medical testing on cannabis was conducted by Lilly, Parke-Davis, Squibb, and Merck, long before the U.S. Food & Drug Administration ever existed. Until 1937, when it became no longer legal, Cannabis had been prescribed or recommended for more than 100 medical conditions listed in the U.S. Dispensatory, a reference guide for pharmacists. Current medical research has affirmed those earlier studies.

Cannabis is used medicinally by 70,000 California permit-holders today. In Oregon, 10,000 patients have permits; their applications have been signed by 1,300 different physicians.

Ten states in our country already accept cannabis as treatment for glaucoma, HIV/AIDS, cancer, the wasting disease of cancer and the side-effects of cancer therapy, Alzheimer’s rage, severe nausea, epilepsy, spasmodic muscle conditions (including those of the intestine), asthma and severe pain of any origin.

If cannabis use were harmful, that would certainly be a well-known statistic. It is not. In fact, there has not been a single medical report of fatal overdose of cannabis. It is less dangerous than Washington D.C. water.

In my experience, the average patient in Oregon is 47 years of age, has used cannabis effectively for about 30 years, and has abandoned standard medications like morphine. Patients tell me and other physicians that cannabis is more effective for them than any of the standard pharmaceuticals that they had been prescribed – including Marinol, the ten-dollar-a-pill synthetic form of THC. (You will be interested to know that Oregon’s Medical Marijuana Program saves the VA and the state millions of dollars.)

The Oregon Medical Marijuana Law requires that the doctor see the patient face-to-face before signing the Attending Physician Statement. All of my patients were given physical examinations, had a review of previous doctors’ records with an evaluation of the therapy the patient had received. If the sum total of documentation and an observation indicated patient eligibility, I would then confirm the previous doctors’ records and sign the application for the permit. After the eligible patients received the signed application, they would send the application to the Oregon Medical Marijuana Program office, which issues the permit.

I do not approve, recommend, or prescribe marijuana. My role is to document whether said patient, in my opinion, has one of the ailments that the State of Oregon has determined may be aided by the use of cannabis under the State of Oregon rules and guidelines. This is the procedure I follow, and to the best of my knowledge and understanding it complies with “the Leveque Rule.” – The Oregon Medical Marijuana Law.

I thank you for this interview for myself, my 4000 patients, my 500 veterans and the 600,000 Oregonians who overwhelmingly voted to legalize Medical Marijuana back in 1998.

Unfortunately, at the last minute, Leveque was convinced not to come to Washington by the Marijuana Policy Project’s “Congressional Liaison,” Steve Fox. The young lobbyist told the old doctor that testifying would be humiliating and dangerous. But the truth is, Fox feared Leveque wouldn’t project the image of slick respectability MPP is striving for.

Bryan Epis Getting Out on Bail

A martyr of the medical marijuana movement has been released from Terminal Island – at least for a while ­ after 22 months behind bar. On Aug. 6 the U.S. Ninth Circuit Court of Appeals directed the District Court Judge who sentenced Bryan Epis in September 2002 to let him out on bail while a related case heads for the U.S. Supreme Court.

As recounted by Epis’s attorney, Brenda Grantland, “Bryan was convicted of conspiracy to grow 1,000 marijuana plants, in a federal trial in which the jury was repeatedly instructed that medical marijuana was not a defense to a federal criminal charge. Despite the instructions, a lot of medical evidence came in at trial including testimony about the five patients that were growing together in Bryan’s basement and sharing the work and harvest. All of them had doctors’ recommendations — so under the Ninth Circuit’s decision in Raich v. Ashcroft, all of the plants shared between the five patients would be exempt from federal control, since their activities were legal under state law.”

The Bush administration is going to the U.S. Supreme Court to try to overturn the Raich decision, which held that marijuana grown and consumed entirely within a state where it’s legal has no impact on interstate commerce and therefore the feds have no jurisdiction. It will heard in the first few months of 2005. The later the better from Bryan’s point of view ­last year the Supremes reversed 77% of the appeals court decisions they reviewed.

FRED GARDNER can be reached at fred@plebesite.com

 

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Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com

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