With medical marijuana now legal in 29 states and the District of Columbia, a growing number of physicians are being asked to recommend medical marijuana for patients who qualify. And while many physicians do so willingly, others are reluctant, in part due to malpractice and licensure concerns. Furthermore, since marijuana is still a Schedule I drug under the Controlled Substances Act, some physicians also fear retaliatory action by the DEA.
But how valid are these concerns, realistically? According to most experts in the field, physicians who recommend medical marijuana appropriately and in accordance with state and local laws are fairly safe. Nevertheless, adherence to basic risk management strategies, such as careful documentation of patient interactions and obtaining informed consent, is certainly a good idea.
According to experts in medical marijuana case law, malpractice claims against physicians who recommend medical marijuana are either nonexistent or extremely rare. Since physicians do not prescribe or dispense but merely recommend the drug, there is little risk of being sued by the patient for, say, prescribing too large or too small of a dose. And though clinical trials on the safety and efficacy of marijuana are scarce, years of empirical data suggest that it is well-tolerated and, for the most part, safe.
With that said, medical marijuana is not totally benign, especially when smoked. Patients with cancer and HIV and other immunocompromised hosts are at risk of contracting aspergillosis from inhaled fungal spores, although data suggests the risk is small. And research reported by NORML states that “chronic exposure to cannabis smoke has also been associated with the development of pre-cancerous changes in bronchial and epithelium cells in similar rates to tobacco smokers.” These abnormalities were seen mainly in people who smoked marijuana and tobacco, which suggests that the two substances have an additive adverse effect that could lead to respiratory cancers down the road. No large-scale epidemiological studies on the health effects of smoking cannabis in non-tobacco smokers currently exist.
To protect themselves against malpractice claims, physicians who recommend medical marijuana should institute a common-sense strategy to manage risk, said James Lewis Griffith, Sr., a malpractice attorney from Philadelphia, Pennsylvania, in a Medscape interview. Griffith recommends that treating physicians create a standard disclosure form that includes:
- The potential risks and benefits of medical marijuana
- A waiver of liability
- A statement indicating that the physician’s recommendation is “given in reliance on the patient’s statement of their condition”
- The patient’s underlying diagnosis and the specific symptoms the marijuana is meant to treat.
The form should be signed by the physician and the patient and kept with the patient’s medical chart.
Patients with young children or grandchildren should also be advised of the potential dangers of edibles, which are often packaged as attractive “treats.” And, of course, physicians should counsel patients on the risks of driving while under the influence of any medicati
on that might impair their ability to safely operate a vehicle. These discussions, too, should be documented in the patient’s chart.
State laws vary regarding what sort of documentation physicians who recommend medical marijuana must maintain. However, most states demand some sort of assurance that doctors are prescribing marijuana for appropriate patients in accordance with state law.** Doctors who fail to so can be censured or worse. For example in 2014, regulators forced a Maine gynecologist to surrender his medical license when he was caught certifying male patients, which was clearly outside his scope of practice.
In most states, doctors who recommend medical marijuana must demonstrate a “legitimate” relationship with the patient they are certifying. To establish this, documentation should include a thorough history and physical, a list of relevant symptoms, and evidence that the physician will maintain an ongoing role in the patient’s care. Using a standardized disclosure form will serve to document discussions about risks and benefits of treatment; safe storage practices; and the importance of not driving while impaired.
**Find a list of medical conditions that qualify for certification in your state here.
Concerns About Federal Law
Many physicians are reluctant to recommend medical marijuana because of its status as a Schedule I drug. However, with the issuance of the Cole Memorandum in 2013, the Department of Justice essentially removed the threat of enforcement action against physicians by the DEA. Additionally, the American College of Physicians has issued a position statement that in large part was intended to assuage physician fears. It says,in part, “The ACP strongly supports exemption from federal criminal prosecution; civil liability; or professional sanctioning, such as loss of licensure or credentialing, for physicians who prescribe or dispense medical marijuana in accordance with state law.”
Assurances notwithstanding, some physicians in Massachusetts, where medical marijuana has been legal since 2012, not long ago found themselves in the DEA’s sights. According to a report in the Boston Globe, DEA agents issued ultimatums to at least seven doctors in 2014, threatening to pull their license to prescribe controlled substances if they didn’t sever ties with the marijuana industry immediately. To our knowledge, no further intimidation tactics have been reported since that time.
No physician is required by law to recommend medical marijuana. But if you choose to do so, and it’s legal in your state, The Carmoon Group can help you manage your risk. We offer high quality, affordable insurance solutions for the entire industry, from growers to distributors, dispensaries and physicians who recommend the drug. So give us a call today to set up an appointment to speak with an agent. Or if you prefer, reach out online and we’ll get back to you at a convenient time.