July 2018 - Volume 15 - Issue 1 | Monday July 23, 2018

Florida Physicians: Medical Marijuana Care Requires Effective “Recommendations” Under Compassionate Use Registry

Until 1942 physicians could write prescriptions for marijuana. Today, 75 years later, that same prescription is illegal under both Florida and Federal Law.(1) With the implementation of Amendment 2, Florida-licensed physicians are permitted to certify qualifying patients for medical marijuana use(2), yet most physicians are conservatively cautious for fear of legal repercussions. As evidenced by the latest numbers obtained from the Office of Compassionate Use Registry, only 1.5% of Florida physicians are registered to certify and order medical marijuana for patients.(3) In other states, some physicians have taken advantage of the lack of competition; in Oregon, for example, only 24 physicians accounted for 75% of total medical marijuana patient applications.(4)

Since November 8,(5) physicians have seen an increase in patient curiosity concerning medical marijuana. However, many physicians avoid discussing medical marijuana with patients for fear of losing their DEA licenses or being implicated in aiding, abetting, or conspiring to commit a federal offense. Existing law indicates that it is not as much of a concern as they believe. In Conant v. Walters,(6) the Ninth Circuit held that (i) physicians have a First Amendment right to recommend medical marijuana to their patients and (ii) physicians who merely discuss the pros and cons of medical marijuana use cannot have their DEA license revoked. The Ninth Circuit’s decision is persuasive authority for Florida’s Eleventh Circuit jurisdiction. Moreover, the Supreme Court has recognized that physicians’ speech is protected under the First Amendment due to the significance of the doctor-patient relationship(7) and is entitled to “the strongest protection our Constitution has to offer.”(8)
Because it is not federally legal, however, ordering medical marijuana for patients on Florida’s Compassionate Use Registry could expose physicians to liability if the order appears, instead, to be a prescription. Currently, the Compassionate Use Registry allows physicians to enter specific instructions for patients concerning their medical marijuana use. The more specific a physicians’ comments and instructions are, the more likely their “order” starts to sound like a “prescription,” exposing the physician to potential liability. Presently, the Compassionate Use Registry directs physicians creating a patients’ medical marijuana order to input specific information, such as: (i) route of administration; (ii) order notes; (iii) amount of Cannabidiol (CBD) per dose; (iv) number of doses per day, and; (v) the option to authorize the patient to purchase medical marijuana delivery devices. This particular information, if inputted by the ordering physician, could be construed as the physician possessing the specific intent to aid a patient to acquire marijuana, which would constitute a federal offense due to marijuana’s designation as a Schedule I drug under the Controlled Substances Act.
However, based on the significance of the doctor-patient relationship, physicians should not be fearful of exposing themselves to liability by merely recommending and/or discussing medical marijuana with their patients. It is vitally important to note the subtle, yet distinct difference between a “prescription” for the medical use of marijuana which is illegal and carries significant penalties, and a “recommendation” for the same. By contrast, a “recommendation” that a patient has a certain condition and could benefit from medical marijuana is permissible and will not implicate legal liability. It is equally important to note that any discussion of medical marijuana with patients should include the following points:
• Effectiveness of marijuana as treatment;
• Potential risks and side effects of marijuana;
• Current state of marijuana knowledge in the medical community;
• Medically acceptable alternatives to marijuana;
• Possible addictive properties of marijuana;
• The risks of smoking marijuana;
• Possible termination from employment for marijuana use;
• Possible lack of coverage or denial of claims from Insurance companies;
• Locations and delivery capabilities of the seven (7) licensed dispensaries; and
• The Compassionate Use Registry is accessible to law enforcement agencies.
Physicians interested in becoming more involved in the medical marijuana space should turn to the literature to better understand cannabinoid physiology, the neurochemical effects of marijuana and its pharmacological interactions. Additionally, they should dedicate themselves to learning the effects of the various chemical compounds found in marijuana;(9) complete the 8-hour CME course offered by the Florida Medical Association or the Florida Osteopathic Medical Association;(10) cultivate 90-day physician-patient relationships; wait until the “July 3rd” deadline(11) by which the Florida Department of Health is scheduled to release rules within the parameters of Amendment 2; familiarize themselves with sample templates for patient treatment plans;(12) stay up-to-date with Office of Compassionate Use Bi-Weekly updates;(13) look into acquiring medical marijuana malpractice insurance; and update their procedure and patient disclosure forms.

For questions or more information about the possible legal implications of implementing medical marijuana to your healthcare practice, contact Vijay S. Choksi, Esq. at vchoksi@kklaw.com or (561) 324-8348, Regulated Substances Practice Group Attorney at Kelley Kronenberg, P.A.

(1) 21 U.S.C. §824(a).
(2) Art. X, § 29, Fla. Const. (9) “Physician certification” means a written document signed by a physician, stating that in the physician's professional opinion, the patient suffers from a debilitating medical condition, that the medical use of marijuana would likely outweigh the potential health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician certification may only be provided after the physician has conducted a physical examination and a full assessment of the medical history of the patient. In order for a physician certification to be issued to a minor, a parent or legal guardian of the minor must consent in writing.
(3) As of May 12, 2017, there were 804 listed physicians on Florida Department of Health Office of Compassionate Use Registry. http://www.floridahealth.gov/programs-and-services/office-of-compassionate-use/_documents/completed-cme.pdf
(5) 71.3% of Floridians voted for Amendment 2 on November 8, 2016. https://results.elections.myflorida.com/Index.asp?ElectionDate=11/8/2016&DATAMODE=
(6) Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
(7) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
(8) Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995).
(9) Cannabis is a complex plant with over 400 chemical entities of which more than 60 are cannabinoid compounds. (THC, CBD, CBC, CBG, CBN and THCA-A)
(10) § 381.986 (4) (a), Fla. Stat.: All physicians must successfully complete the 8-hour CME course and the subsequent certification examination before ordering low-THC cannabis and medical cannabis. The 8-hour course and examination must be taken once every two years (prior to renewal of the physician's license to practice medicine).
(11) Art. X, § 29, Fla. Const. : Amendment 2 requires that regulations for the department of health's medical marijuana program be set for the issuance of identification cards, qualifications and standards of care givers, and rules for the registration of medical marijuana treatment centers by July 3, 2017, which is six months after the effective date of January 3, 2017.
(12) https://cca.pharmacy.ufl.edu/
(13) http://www.floridahealth.gov/programs-and-services/office-of-compassionate-use/resources/index.html
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