Judge Shields Doctors Who Recommend Pot

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.

The judge said, however, that 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 to warrant it, Smith limited her ruling to four specific illnesses, including AIDS and cancer.

Unless overturned by a higher court, the injunction will remain in effect until the lawsuit is decided at trial, which could be as long as two years away.

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 crackdown.

“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.

Clinton Administration officials were scurrying to find holes in Smith’s ruling, but refused to speculate on whether they might appeal.

“This ruling has a lot of ingredients to it,” said Bob Weiner, a spokesman for the president’s office of drug policy.

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

Although the federal government contends that 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 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.”

She also said “the government’s fear that frank dialogue between physicians and patients about medical marijuana might foster drug use” does not justify putting restraints on a doctor’s privilege to speak frankly with a patient.

Under Smith’s decision, any effort by physicians 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, Boyd said. Moreover, patients can request their medical records after a physician recommends pot and use them to justify obtaining the drug from a buyers’ club, advocates said.

Perhaps the most pointed statement Wednesday to the powers of pot came from Keith Vines, a prosecutor in the San Francisco district attorney’s office.

In 1990, Vines prosecuted what was one of the biggest drug busts in the city’s history. Three years later, he was near death because of AIDS wasting syndrome.

The recommendation: marijuana. “As a patient, I made the decision to save my life,” said Vines, a plaintiff in the case who still uses marijuana for medical purposes.

Times staff writer Dave Lesher also contributed to this story.