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found a "respectable minority" composed of sixty-five physicians  
throughout the United States, the Texas court adopted as "the better  
rule" to apply in its case, that 
          a physician is not guilty of malpractice where the 
          method of treatment used is supported by a respect- 
          able minority of physicians. 
Ibid. 
     In Chumbler v. McClure, 505 F.2d 489 (6th Cir. 1974) the Federal  
courts were dealing with a medical malpractice case under their diversity  
jurisdiction, applying Tennessee law, The Court of Appeals said: 
          . . . The most favorable interpretation that may be 
          placed on the testimony adduced at trial below is 
          that there is a division of opinion in the medical 
          profession regarding the use of Premarin in the Treat- 
          ment of cerebral vascular insufficiency, and that Dr. 
          McClure was alone among neurosurgeons in Nashville in 
          using such therapy.  The test for malpractice and for 
          community standards is not to be determined solely by 
          a plebiscite.  Where two or more schools of thought 
          exist among competent members of the medical profes- 
          sion concerning proper medical treatment for a given 
          ailment, each of which is supported by responsible 
                                  - 28 - 
          medical authority, it is not malpractice to be among 
          the minority in a given city who follow: one of the 
          accepted schools. 
505 F.2d at 492 (Emphasis added).  See, also, Leech v. Bralliar, 275  
F.Supp. 897 (D.Ariz., 1967). 
     How do we ascertain whether there exists a school of thought  
supported by responsible medical authority, and thus "accepted"?  We  
listen to the physicians. 
               The court and jury must have a standard measure 
          which they are to use in measuring the acts of a 
          doctor to determine whether he exercised a reasonable 
          degree of care and skill; they are not permitted to 
          set up and use any arbitrary or artificial standard 
          of measurement that the jury may wish to apply.  The 
          proper standard of measurement is to be established 
          by testimony of physicians, for it is a medical 
          question. 
Hayes v. Brown, 133 S.E. 2d. 102 (Ga., 1963) at 105. 
     As noted above, there is no question but that this record shows a  
great many physicians, and others, to have "accepted" marijuana as having  
a medical use in the treatment of cancer patients' emesis.  True, all  
physicians have not "accepted" it.  But to require universal, 100%  
acceptance would be unreasonable.  Acceptance by "a respectable minority"  
of physicians is all that can reasonably be required.  The record here  
establishes conclusively that at least "a respectable minority" of  
physicians has "accepted" marijuana as having a "medical use in treatment  
in the United states."  That others may not makes no difference. 
     The administrative law judge recommended this same approach for  
determining whether a drug has an "accepted medical use in treatment" in  
The Matter Of MDMA Scheduling, Docket No. 84-48.  The Administrator, in  
his first final rule in that proceeding, issued on October 8, 1986  
[footnote 8], declined to adopt this approach.  He 
____________________ 
8    51  Fed. Reg. 36552 (1986). 
                                  - 29 - 
ruled, instead, that DEA's decision on whether or not a drug or other 
substance had an accepted medical use in treatment in the United States 
would be determined simply by ascertaining whether or not "the drug or 
other substance is lawfully marketed in the United States pursuant to 
the Federal Food, Drug and Cosmetic Act of 1938 . . . ." [footnote 9] 
     The United States Court of Appeals for the First Circuit held that  
the Administrator erred in so ruling. [footnote 10]  That court vacated  
the final order of October 8, 1986 and remanded the matter of MDMA's  
scheduling for further consideration.  The court directed that, on  
remand, the Administrator would not be permitted to treat the absence of  
interstate marketing approval by FDA as conclusive evidence on the  
question of accepted medical use under the Act. 
     In his third final rule [footnote 11] of the matter of the  
scheduling of MDMA the Administrator made a series of findings of fact as  
to MDMA, the drug there under consideration, with respect to the evidence  
in that record.  On those findings he based his last final rule in the  
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