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Medical Marijuana: Regulations Clash

Doctors are facing a dilemma: risk breaking the law or withhold a potential treatment.
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Mastroianni's views hardly put him on the medical fringe. Physicians who treat cancer patients have long been aware that smoking marijuana can relieve the terrible nausea of chemotherapy, allowing patients to maintain the weight crucial for survival. In fact, a survey conducted by Harvard Medical School in 1991 revealed that 44 percent of oncologists had proposed marijuana use to their patients.

Even some drug enforcement officials have broken ranks to back the medical use of marijuana. In 1988 a DEA administrative law judge wrote that marijuana should be classified as a Schedule II drug -- one that's safe for limited uses. "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man," he said. "[It] has a currently accepted medical use in treatment in the United States for nausea and vomiting resulting from chemotherapy." The DEA rejected his opinion, though, and recent attempts to have the courts reclassify marijuana have failed.

Most states, however, have their own laws regarding marijuana and physicians. Since the late 1970s, 34 states have passed laws -- 24 of which remain on the books -- that allow doctors to recommend marijuana or urge the creation of research programs on cannabis. The trouble is, state law is superseded by federal law, and the latter's position on pot is crystal clear: Marijuana is a Schedule I drug on the DEA's list of controlled substances, meaning it "has no currently accepted medical use" and cannot be prescribed under any circumstances.

Nonetheless, after the Compassionate Use Act became law, Mastroianni wrote letters recommending marijuana to three seriously ill patients. According to a source close to the case, one of these patients showed his letter to police after they pulled his son over and found a marijuana cigarette in the car. Police gave the letter to the DEA, whose agents paid a visit to the physician.

"It's a very frightening thing for a physician to be faced with," says Stephen N. Sherr, a San Francisco attorney. "On the one hand, you have the obligation to inform your patients of your knowledge of medical issues that bear on his or her case. And on the other hand, there is the potential criminal liability that could completely wipe out your career. Even if you win, going through a criminal action would be a nightmare."

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