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Upside-Down World – A Patient Sues You to Keep Taking Care of Them

05/31/17 9:00 AM

Normally, when a patient sues a doctor, he is unhappy with the care. He wants money for damages the doctor allegedly caused. Most rational people do not continue to see the same doctor if they believe that doctor negligently harmed them 

As Einstein once said: The definition of insanity is doing the same thing over and over and expecting different results.  

Yes, there are times when a patient wants to keep seeing you long after you have terminated the relationship. If you do not properly terminate the doctor-patient relationship, you can be subject to medical board disciple for abandonment. Still, this is not common. 

In Gersten v. Sun Pain Management and Dr. Ronald Burns, the patient, Gersten, sued alleging Dr. Burns had violated a provision of the Arizona Medical Marijuana Act.  

Let me explain… 

In 2010, Arizona adopted the Medical Marijuana Act. One provision states: 

A.R.S. § 36- 2813(C).  

For the purposes of medical care, including organ transplants, a registered qualifying patient’s authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care. 

Gersten suffered from chronic pain related to Crohn’s disease. Dr. Burns treated Gersten for chronic pain with various prescription medications, with mixed results. Gersten told his doctor he intended to obtain certification to use medical marijuana and in October 2014, received his “registry identification card” and became a “registered qualifying patient” under the Act. Crohn’s disease is considered a “debilitating condition” under the Act. Gersten began using medical marijuana. Dr. Burns then discharged Gersten as his patient. 

Gersten sued his doctor. He sought money damages and equitable relief, including an order requiring Dr. Burns to continue treating him in “the same manner, at the same rate, and at the same standard of care” as before his discharge.  

A lower court and appeals court smoked the patient’s argument. They concluded the Medical Marijuana Act did not provide the patient a private cause of action against his doctor. They noted that the Act requires that qualifying patients will not “otherwise” be disqualified from medical care solely because of their authorized use of medical marijuana. But… 

That A.R.S. § 36-2813(C) ensures equal treatment does not, however, obligate a physician to extend or continue medical care to a qualifying patient. The wording of A.R.S. § 36-2813(C) does not require a physician to treat a qualifying patient, nor does the wording attempt to regulate the relationship between a physician and patient. 

The Appellate court continued that under the Arizona Medical Marijuana Act, medical care should be interpreted differently than affirmative obligations related to school enrollment, landlord-tenant relationships, and employer-employee relationships.  

The Arizona Medical Marijuana Act mandates: 

[n]o school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for his status as a cardholder, unless failing to do so would cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulations.” In a similar vein, A.R.S. § 36-2813(B) provides that, with certain exceptions, an employer may not discriminate against a person in hiring, terminating, or imposing any term or condition of employment. 

But the Act imposed no affirmative obligation to treat or continue to treat a qualifying patient.  

This is a sound outcome.  

Dr. Burns likely had a number of reasons for terminating the doctor-patient relationship. He is a pain management doctor. The patient was seeking care from two different entities to manage one condition. If the law mandated that the patient could seek pain relief with two different doctors, and each doctor must manage the care, each doctor would lose the ability to control how care, in his individual judgment should be rendered.  

Don’t be surprised to see more cases related to medical marijuana. 

What do you think? 


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