Providing Legal Cannabis Can Bring Potential Liability
January 1, 2023 2 minutes read
By Greg Freeman
Physicians who recommend medical cannabis, and their affiliated hospitals or clinics, should be aware of potential legal risks, even when state law allows medical use.
Laws pertaining to medical cannabis are state-specific and vary, says Bob Morgan, JD, partner with Benesch in Chicago. Morgan was appointed by the governor of Illinois to create and implement a regulatory framework for medical cannabis.
Federal law prohibits physicians from prescribing cannabis, even in states that allow its use. To enable the use of cannabis for medical reasons, some states use terms such as “recommendation” or “certification” as opposed to a prescription from a physician.
“Right off the bat, you’re talking about using medicine in a way that’s contrary to all their training and their daily lives,” Morgan says. “Add to that the increasing consolidation across physician practices where they’re being bought out by health systems that tend to be much more conservative and rigid with their risk management strategies.”
States’ physician licensing and professional regulation programs also can come into play, sometimes restricting how physicians can certify for medical cannabis.
Healthcare organizations should establish protocols for medical cannabis. These protocols will depend on state law and physician licensing.
“The definitions of a bona fide patient-physician relationship vary across states, and telemedicine has really transformed the way that physicians are conducting their practice of providing a physician support and interaction with their patients,” Morgan says. “This is just one more complication, so a risk manager is going to want to establish a variety of protocols to ensure that a physician’s license is secure, that the physician is providing appropriate care consistent with state laws. That should include whether the physician is properly documenting that information and how that interacts with all the other systems that we already have with regards to risk management.”
The most likely problem that can arise with medical cannabis involves a physician providing certification without a true patient-physician relationship, Morgan says. For example, the physician may provide certification for a sibling or a family member without seeing that person in a clinical setting.
“Every state has seen this, to some degree or another, where a physician will start to certify patients without actually visiting with them. States really struggle with that because they want a true system of medical care and avoid any pill mill situation,” Morgan explains. “You see professional licensing divisions that have enforcement mechanisms. We’re seeing in every state that comes on board with medical cannabis that there are physicians that who it to its natural extreme and, in fact, violate their patient-physician relationship requirements.”
SOURCE
- Bob Morgan, JD, Benesch, Chicago. Phone: (312) 624-6356. Email: [email protected].
Physicians who recommend medical cannabis, and their affiliated hospitals or clinics, should be aware of potential legal risks, even when state law allows medical use. Federal law prohibits physicians from prescribing cannabis, even in states that allow its use. To enable the use of cannabis for medical reasons, some states use terms such as “recommendation” or “certification” as opposed to a prescription from a physician.
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