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Judge Prevents Punishment Of Doctors Who Prescribe Pot

By Maria La Ganga and Eric Bailey
Los Angeles Times
SAN FRANCISCO

Saying the Clinton administration has sent mixed signals on medical marijuana, a judge blocked the federal government Wednesday from carrying out threats to punish California doctors who recommend the drug to patients.

U.S. District Judge Fern Smith issued a preliminary injunction barring retaliation against physicians who endorse the therapeutic use of marijuana, which was legalized by last November's Proposition 215, but remains illegal under federal law.

But the judge said she would "draw the line at criminal conduct," such as a physician aiding or conspiring to help a patient obtain or cultivate marijuana. And though Proposition 215 allows doctors to recommend pot for any illness they deem fit, Smith limited her ruling to only four specific illness, including AIDS and cancer.

Unless overturned by a higher court, the injunction will remain in effect until the lawsuit is decided at trial.

The doctors and patients who filed the class-action lawsuit against the federal government heralded Smith's ruling, saying it helps to ease fears that mounted after federal drug czar Barry McCaffrey and other administration officials threatened a crack down.

"I feel a heck of a lot better today," said Dr. Virginia Cafaro, medical director of a large AIDS practice in San Francisco. "I can go back to practicing medicine without the idea that the government will be in the room."

Other boosters of medical marijuana called Smith's decision a repudiation of the Clinton administration's efforts to undercut Proposition 215.

"Today's ruling is a huge victory for the rights of physicians and patients, and for the authority of voters to make important policy decisions," said Dave Fratello, a spokesman for Americans for Medical Rights, which pushed the November ballot measure. "The Clinton administration must now accept the will of the people."

Smith's order applies to doctors who recommend marijuana for patients with AIDS or the HIV virus that causes the disease, cancer, glaucoma, and seizures or muscle spasms associated with a chronic, debilitating condition.

While the federal government contends pot has no proven therapeutic value, boosters of medical marijuana say it can help relieve pain, stimulate the appetite and combat the wasting effects of chemotherapy.

The lawsuit was filed after McCaffrey's December announcement that doctors who recommend pot would face the loss of their authority to prescribe most medicines, be excluded from Medicare and potentially face criminal prosecution.

Although there have been only isolated episodes of drug agents contacting doctors, physicians said the administration policy had a chilling effect on their ability to talk with patients about the drug.

U.S. officials in February attempted to clarify their position in a letter to medical leaders stressing that doctors could discuss the use of pot as medicine with patients, but could not recommend it as outlined in Proposition 215.

The judge said Wednesday that the government's policy was unclear and the statements remained "ambiguous and conflicting."

"When faced with the fickle iterations of the government's policy, physicians have been forced to suppress speech," Smith said in her decision.

She also said "the government's fear that frank dialogue between physicians and patients about medical marijuana might foster drug use" doesn't justify putting restraints on a doctor's privilege to talk frankly with a patient.

Doctors and patients said Smith's decision brought some clarity to a fuzzy issue. But the edges are still a bit blurred.

Under Smith's decision, any effort by the physician to help a patient get pot could put them in jeopardy.

"What's not protected is helping the patient get the marijuana," said Graham Boyd, the San Francisco attorney pressing the lawsuit. "A physician should not take a telephone call from a marijuana buyers' club and should not fill out a form from a buyers' club."

That aspect of the ruling drew complaints from some. "It's a totally dead-end game if we can recommend marijuana but people aren't able to access marijuana," said Dr. Steve O'Brien, of Berkeley's East Bay AIDS Center.

But the judge's decision did give California doctors unrestricted freedom to discuss and recommend the drug without fear of repercussions, Boyd said. Doctors should take "a large degree of comfort from the judge's ruling," he added.