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We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.

You are an oncologist.  You treat your patients with drugs that can save their life, but the cost is often profound nausea that impairs their ability to sustain treatment and the quality of the life that you are trying to extend. You want to suggest marijuana, which is legal for medicinal purposes in your state, but you are worried about the liability.

Let’s look at some of these issues and how they can be addressed so that you can be comfortable if you want to offer this option to your patients.

• What is my role as the doctor?

The essential point is that you are not prescribing. Because the DEA classifies marijuana as a Schedule I drug under the Controlled Substances Act (the same class as heroin and LSD), it cannot be legally prescribed.  

The operational process of making the recommendation is also fundamentally different from prescribing. Unlike the prescribing of a medication, in which you actually create a personal order to release a specific drug in a specific dosage and at a specific schedule to the patient, all that you are doing vis a vis medical marijuana is certifying that (1) after a thorough physical examination and review of appropriate records, you have determined that this patient has a qualifying condition that your state recognizes; and (2) that the potential benefit to this patient is greater than the potential risk.

You are therefore only a gatekeeper to what is, after your involvement, then allowed in a conditionally permissive system.

• Can I be sued for malpractice related to recommending marijuana?

You can be sued for anything. The question is whether a plaintiff would prevail.

To date, there are no such cases but, of course, whatever you recommend within the scope of your duty to a patient – for example, recommending that a patient take up jogging to lose weight as part of their diabetes control – does have that potential risk. So, just like any other recommendation, you need to be proactive in your thinking when you recommend marijuana.

Were such a claim to be brought it would be based on you having made the recommendation improperly – that you did not do an adequate exam before recommending it or that the patient had another condition or was taking another drug that made marijuana too risky for them.

In the absence of an established Standard of Care for recommending marijuana a good model to look to is that used when prescribing opioids: first document your rationale for making the recommendation, importantly including the failure of other alternatives, and then document that you discussed the risks, including addiction, and gave any appropriate warnings (such as not to drive or operate heavy machinery), using a disclosure form that the patient signs.

Do not, however, start overreaching by adding waivers that hold you totally harmless for any problems the patient may incur.  You cannot transfer liability away in this fashion for any other drug or procedure because your duty of care remains. Further, in this setting, it casts you in the light of a merchant which is what you want to avoid. Your status should be an objective physician with no concern other than your patient’s welfare that protects you from actions by law enforcement (see below).

You would then also document that you followed-up with the patient about their use of the drug – how much they were using, how often, how it was affecting them – and re-emphasized appropriate warnings at those times.

If your state requires you to check the prescription database on a patient before you make this recommendation, then you would also document that you did so and that you found no drugs listed that would contraindicate the use of marijuana.

• Do I need to inform my malpractice carrier even though I am not actually prescribing?

Yes.

There are no specific exclusions from coverage by companies based on recommending marijuana in a state where that is legal, but not informing your carrier of a material change in how you practice may leave a claim excluded. So do not try to slip through on a semantic technicality about “prescribing” “FDA-approved” medications. Medical marijuana is not FDA approved.

The insurer will probably want to know how often you make this recommendation and in what circumstances. You will want to get their acknowledgment in writing that a recommendation for marijuana will be covered under your policy.  If your carrier will not provide that then you may try to get coverage through a surplus lines carrier.  If that is not possible then refer your patient to a doctor willing to make the recommendation. In other words, although there have not yet been cases of malpractice claims in this area, in case you are the defendant in the first such case, you want to have insurance coverage in place.

• What if my patient injures themselves or someone else while using the marijuana I recommended?

This paradigm is no different from that which applies whenever you prescribe a medication or administer a treatment that impairs a patient’s consciousness: you are liable to the patient and to those they foreseeably harm. However, that liability is vitiated by fulfilling your duty to warn the patient of the limitations on their activities when using marijuana and about issues like keeping edibles away from children and documenting that you did so. If they then ignore that advice and harm themselves or someone else you should avoid liability.

Of course, the limitation on this is that you must have a reasonable belief that the patient is taking the warning seriously. If you recommend marijuana for a patient who is clearly ignoring you or not taking the matter seriously, your liability remains.

• Could my license be in danger?

Only insofar as you act as the local dealer.

Examples of discipline by medical boards include the Colorado doctor who had to surrender his  license after setting up in tattoo parlors and hotels to see “patients” who then all received recommendations for marijuana, the Arizona doctor who was reprimanded for  issuing 483 certifications without  checking the patients’ prescription drug histories but falsely attesting that he had done so, and the Maine doctor – a gynecologist – who lost his license for writing medical marijuana certificates for men who were, of course, not his patients.

In other words, the violations have to be rather egregious and have obvious indicia of acting for profit and / or with an intention to engage in diversion.

• Even though medical marijuana is permissible in my state could I be arrested by the DEA under Federal law?

Not if you act properly.

The seminal case on whether the DEA could pursue a doctor who recommended marijuana is Conant v. Walters (2000). The court held that the federal government could not punish or threaten to punish a physician for recommending marijuana to a patient if that recommendation was based on the physician’s “sincere medical judgment” that marijuana would help that patient. On a later (2002) appeal by the government that affirmed this decision the fact that making this recommendation is protected under the First Amendment was emphasized. .

Of course, the “sincere medical judgment” standard must be met. Physicians can still face criminal liability if the recommendation is not based on that – if they are basically just giving out access to marijuana – or if they are otherwise not compliant with state law.

In 2013, the Department of Justice went further and advised US attorneys to not pursue actions against certifying physicians in states that allow medical marijuana. This practice of prosecutorial discretion is based on the fact that actual interests of law enforcement are preventing issues like sales revenue going to criminal enterprises or drug diversion to non-legal states-  not preventing cancer patients from holding down their meals.

In other words, to the extent that you are operating appropriately within your state’s guidelines you will not be committing a state offense and the Feds will choose to ignore what would be an offense in their system.

• Could this affect my hospital privileges?

The problem that you can face here is that facilities and health plans that that participate with Medicare and Medicaid must sign an agreement that states that they are in compliance with all Federal laws and, as we noted earlier, marijuana is still illegal at a Federal level.  You will therefore not be able to make the recommendation from an on-premises office or clinic. But the hospital may also bar you from doing so from your own office if you have a close connection with it, such as a staff appointment, rather than merely having privileges.  As with your insurance carrier, this is a matter that you want clarified up front rather than trying to repair a problem later.

• If I have made the appropriate arrangements can I just start doing this for my patients?

No. Your state will have its own regulations that you must first comply with.

For example, in New York a practitioner must first complete an approved 4 hour course on the pharmacology of marijuana, contraindications, side effects, adverse reactions, overdose prevention, drug interactions, dosing, routes of administration, risks and benefits, warnings and precautions, and abuse and dependence and must then register with the state.

You should also review the requirements for making the actual recommendation since you will be attesting to them.  For example, Arizona requires a review of a year of medical records on the patient.

In summary: Recommending marijuana is an accepted and medically respectable approach to several conditions. A doctor considering doing so should familiarize themselves with the law in their state and make sure to comply fully with it as this will not only protect their state license but keep them under the radar of Federal authorities which have the discretion to not prosecute legitimate medical usage. Although there have not been malpractice actions based on recommending marijuana, a doctor engaging in this should have adequate coverage in place. The doctor should also make sure that their affiliated hospitals accept this activity.

Medical Justice Notes: [Pioneers take arrows. Those practitioners who are first out of the gate take the most risk with an unknown paradigm. That said, medical marijuana has been available in some states for many years. Practicing within that paradigm is well defined. And the federal government has chosen not to prosecute those doctors who operate within state sanctioned processes. It will be interesting to see if and when the federal government changes its legal stance on the subject. It will also be interesting to see what changes, if any, occur once FDA approved drugs for medical marijuana hit the market. FDA clinical trials using specific strains of medical marijuana for epilepsy are being conducted.]