Medical Marijuana: Regulations Clash

Doctors are facing a dilemma: risk breaking the law or withhold a potential treatment.

You might say it was like a bad trip. One morning in 1997, family physician Robert Mastroianni arrived early at his office in tiny Pollock Pines, California, to find two agents from the federal Drug Enforcement Administration waiting for him. After a brief introduction, they began firing questions: Where had Mastroianni gone to school? Where had he done his medical training? One of the agents then handed the doctor a copy of a letter he had written recommending marijuana for a patient. Had Mastroianni actually prescribed pot, the agent asked, or had he only suggested it? Did he sell marijuana to his patients? Was he aware that marijuana was a deadly drug for which there was absolutely no medical use?

Mastroianni was stunned, then angered. He refused to answer further questions without a lawyer present. "Many of the agents' questions were professionally insulting," he wrote later. Worse, they revealed "a primitive and largely inaccurate understanding of medical practice." The agents requested Mastroianni's DEA number, a code that doctors must use when they prescribe any controlled substance. He complied, and the agents left -- but not before sending a chilling message to Mastroianni, and, when news reports about the drug agents' visit got out, to thousands of doctors nationwide.

What had Mastroianni done? Nothing that California's Proposition 215 -- the medical marijuana initiative -- said he couldn't do. Passed by the state's voters as the Compassionate Use Act of 1996, the law allows physicians to recommend cannabis, though not to prescribe it, for a wide range of medical ills without being "punished or denied any right or privilege." It also exempts from prosecution seriously ill patients who possess or cultivate the drug for medical treatment on the recommendation of a physician. (Arizona voters passed a similar law, later overturned by state lawmakers; neither law authorized the transportation or selling of marijuana as medicine.) In 20 years of practice Mastroianni had seen about 50 patients use marijuana to combat muscle spasms and chronic pain as well as the nausea caused by chemotherapy. "Patients report no other medications work as well," he wrote in an affidavit filed in a class-action suit.

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."

That fear swept through the medical community after a 1996 news conference in which federal drug czar Barry McCaffrey called the California initiative "a Cheech and Chong show." He and Attorney General Janet Reno further warned that the Justice Department would prosecute doctors who recommend the drug. But if the government's intent was to stop doctors from discussing marijuana, the strategy backfired. The American Medical Association swiftly denounced the idea of restricting conversations between physicians and patients, and the New England Journal of Medicine declared in an editorial that the federal policy was "misguided, heavy-handed, and inhumane." The author of the piece and then Editor, Jerome Kassirer, M.D., a former professor of Mastroianni's at Tufts University, noted the government's hypocrisy in forbidding physicians from prescribing marijuana while permitting far more dangerous drugs such as morphine.

The medical backlash picked up steam in February 1997. A group of 11 physicians led by Marcus Conant, M.D., a clinical professor at the University of California at San Francisco's Medical Center and former director of the largest AIDS/HIV practice in the United States, filed suit to stop federal officials from punishing doctors who counsel patients to try marijuana.

On April 30, 1997, federal judge Fern Smith handed down a preliminary injunction in the Conant case, authorizing doctors to propose marijuana use for certain serious illnesses. Meanwhile, in Congress Rep. Barney Frank (D-Mass.) introduced in March 1999 a bill to make marijuana a Schedule II drug, meaning that, like morphine, it would be classified as a "highly dangerous" drug -- but one with "limited" medical uses. The bill would have allowed "the prescription or recommendation of marijuana by a physician for medical use," and allowed "producing and distributing marijuana for such purpose." Frank's bill had 11 co-sponsors, only one a Republican, Rep. Tom Campbell of California. The bill is still in the House Subcommittee on Health and Environment, and is not expected to make it to the House floor since the GOP is opposed to it. This is the second time Frank has tried to get such a bill approved.

McCaffrey's threats also inspired organizers in 10 states to begin gathering signatures for ballot measures similar to California's medical marijuana initiative. And in May of 1997 the Florida Medical Association called on the federal government to reopen clinical trials on marijuana. The author of the initiative, internist Mark Antony LaPorta, M.D., of Miami Beach, says he was so "pissed" by McCaffrey's comments that he sat down and wrote the successful resolution. "I have never prescribed marijuana, and I can't say that I've ever recommended it," he says. "But I need to be able to discuss it so that my patients have all the information they need."

Several months earlier, federal officials had tried to make amends in an open letter, dated February 27, that said that nothing prevents a physician "from merely discussing with a patient the risks and alleged benefits of the use of marijuana." But the letter confused the issue by repeating the threat of criminal prosecution if doctors provide "oral or written statements in order to enable [patients] to obtain controlled substances." And many local law enforcement officials leave no doubt as to their leanings. "I would investigate any doctor that prescribes this illicit drug, and I'd turn [the case] over to the federal government and ask them to investigate and possibly prosecute," says county attorney Richard Romley of Maricopa County, Arizona. "I don't know if marijuana is good or bad. I don't really care. If the scientific community says it has some beneficial properties, we will support it 100 percent. But it's not up to the voter community."

Given the legal hazards, why do many doctors continue to suggest marijuana? The answer is that it can stop the nausea and retching that torments patients after chemotherapy, as well as halt the disastrous weight slide of the AIDS wasting syndrome. Smoking marijuana is also believed to possibly help lower eye pressure in glaucoma patients, control spasms due to multiple sclerosis, and relieve chronic pain, according to Lester Grinspoon, an associate clinical professor of medicine at Harvard Medical School who has written two books on the medicinal use of marijuana.

For patients wracked by nausea and vomiting, some doctors prescribe Marinol, a legal synthetic version of delts-9 THC (an active ingredient in marijuana). But patients often complain of being disoriented on Marinol, and many doctors say that smoked marijuana acts more quickly and its dosage is easier to adjust. "If you take too much Marinol, you nod off; a patient with AIDS dementia might fall down the stairs," Conant says.

Many doctors say that the best solution would be for the federal government both to allow physicians to advise cannabis use without fear of penalty and to supply marijuana for clinical research, as it did during the 1970s.

In Boston, Grinspoon gets referrals from doctors who are too worried or unfamiliar with marijuana to propose it themselves. "I tell the patient, 'The major risk to you is a legal risk,'" Grinspoon says. "It makes me anxious; it makes the patient anxious. But I would feel remiss as a physician if I didn't do what I can to minimize suffering."

Whatever the federal government decides, Grinspoon has no intention of changing his practice. "I had a son with leukemia, and I saw with my own eyes how helpful it was in dealing with the nausea that he had with chemotherapy," he says. Grinspoon's son died, but the memory of him eating a submarine sandwich after chemotherapy -- and keeping it down -- is one his father will never forget.

"I know better than any federal official what's best for my patients and whether marijuana can help them," he says. "I'm not going to be told by those folks how to practice medicine."

Beatrice Y. Motamedi is an award-winning writer and editor who specializes in health and medicine. Her work has appeared in Newsweek, Wired, Hippocrates, and the San Francisco Chronicle, among other publications. She is currently at work on a book about health care. Motamedi is a contributing editor to WebMD.