Although hardly as familiar as 'driving under the influence," the phrase. "practicing medicine without a license" has a comfortingly familiar ring which is also misleading in most instances.  Sometimes the alleged miscreant had been educated as a physician,  but for some reason, hadn't been able to obtain,a license. Far more often however, it's someone without any medical training who is simply impersonating a physician. In other words, the real offense is practicing Medicine without the requisite education and training.

The tragic 2004 death of Jonathan Magbie in a DC jail illustrates that difference very well; it also serves as a near-perfect example of what may be the most egregious- and least recognized- consequence of American drug prohibition. Although the faux "physician" in Magbie's case was medically uneducated; she does have a law degree and was legally empowered by our federal government to order the shockingly misguided "treatment" which led directly to an avoidable death. She will also probably escape any significant punishment; In fact, she has already been re-appointed to the same bench from which she imposed her judgement.

What the Magbie case illustrates so clearly is an historic error incorporated into our drug laws by two ill-advised SCOTUS decisions shortly after passage of the Harrison Act in 1914. They essentially empowered the nameless functionaries of a Treasury 'Tax Unit,' specifically created to enforce the untried new law with sweeping legal powers which  not only allowed them to make medical judgements they weren't trained for,  but also to enforce them on real physicians through the  harsh penalties which Harrison added to the federal criminal code.

The same ludicrous 'principle' was followed in the 1937 MTA which banned cannabis ("marijuana"); the critical difference between Harrison and the MTA-  one directly responsible for the current political flap over "medical" marijuana- was that the 'medical exception' allowed under Harrison- for some opiates  (
not heroin) and cocaine- which was continued by the CSA's schedule 2- was not allowed for cannabis. Speculation about what might have transpired had cannabis been placed on Schedule 2 rather than  being completely abandoned to the illegal market is one of the many  reasonable "what if?" questions that history will never get to answer. The parallel anomaly is that heroin- originally an effective and safe opiate patented by Bayer in 1898- was treated the same way when Congress officially banned it in 1924.  We all know how that turned out.

What the Magbie case does illustrate- in a particularly poignant way-is  what can happen when judges are authorized to make medical decisions for which they aren't qualified, and for which they have neither liability nor malpractice insurance. When I first read about it, I wondered how a partially ventilator dependent quadriplegic could possibly have been sent to a facility so lacking in the necessary expertise and equipment. Now that the details have been released, it seems the ineptitude and irresponsibility were even worse than I'd suspected; but the medically unqualified judge may have no liability whatsoever for her lethal misjudgment.

As if to underscore the arrogance and ignorance still rampant in our system of  "justice,"  a trial is scheduled to begin next month in California in which another young quadriplegic, will be  tried by his local DA on charges eerily similar to the ones that did Jonathan Magbie in. The major difference is that Aaron Paradiso has been successfully managed without a ventilator; however, he is also a very high quad and totally dependent on a dedicated team of family and friends who provide him with a remarkable level of around-the-clock care; one which could never be replicated in California's notoriously troubled prison medical system.

A particularly mindless touch is that this will be the second attempt to try Paradiso; the first was thrown out on a technicality before the Magbie tragedy.

If these two cases, both ironically occurring in venues where  voters have already approved medical use of cannabis, can't convince the American public that its criminal prohibition- and, indeed, that of all drugs- is an inhumane fraud; then perhaps nothing will.
 

Tom O'Connell MD

Posted by tjeffo at December 7, 2005 11:15 PM

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