That’s the question that will be answered in a California medical board case I am trying this week in downtown Los Angeles.
Back in 1996, California became the first state to allow for a doctor to recommend medical marijuana for patients with serious medical conditions. There was a lot of confusion initially as to what was required to issue the recommendation without getting into board trouble. The California law (called prop 215) by its terms granted physicians immunity from prosecution or even investigation based on their writing a medical marijuana recommendations. (Because it is a schedule I drug, it can’t be technically “prescribed.”).
Notwithstanding the immunity, doctors were prosecuted by the board for writing these recommendations. The administrative law judges, the medical board and the courts allowed for these prosecutions on the theory that if a doctor doesn’t follow standard medical procedure in making the recommendation, he or she is subject to discipline. To some it’s a very subtle distinction, but it does reflect the state of the law in California. Basically a physician has to go through the same kind of analysis and procedure to make the recommendation as he/she would for any other therapeutic recommendation. That means, a history and physical appropriate to the mental condition, informed consent, a treatment plan, follow up, and adequate medical records. Presumably, if the doctor does all that, then theoretically he or she shouldn’t be prosecuted or investigated, just because the treatment recommendation was medical marijuana.
Here are the facts of the case being tried this week
A father brings his son to see the physician. The father is a long-standing patient and has a prop 215 medical marijuana letter from the physician. He explains that the school has told him that his child is so disruptive they’re not going to let him back unless he’s put on medication. He is also disruptive at home. The physician examines the child, obtains history from the father, and observes the child for around 20 minutes, and then agrees to write the recommendation. The father signs a detailed informed consent, and the physician has typed medical record evidencing the history and exam, and states as the diagnosis probable bipolar/ADHD. (back in 2012 they didn’t have any better diagnostics possibilities)
The parents give the kid a small cookie with some marijuana in it before school each day.
miracle of miracles, the child is no longer disruptive in class and he becomes a model student. But it wears off towards the end of the day, so the school requests that the child receive a second dose after lunch.
The school doesn’t know the kid is on MM. The father naively goes to school and gives the teacher a MM cookie and asks that it be given to his child.
You guessed it!
The school freaks out, call the sheriff’s department, which opens up a criminal investigation of the father. It also calls CPS (child protection service) which obtains a temporary removal order for all four kids. The mother then takes the kids out of state, and the sheriff’s office pursues criminal charges against the father. The father sues back. Eventually, the family returns, the CPS order is dropped, and the father settles with his prosecutors. But there was a lot of collateral damage. The parents get divorced. The child has to be involuntarily committed for a few days because of rage and aggression (he hasn’t been on MM since it was originally given to him several years before his commitment), and he’s diagnosed with a newly established medical condition. All the kids and the father now live with his parents. The father is now being prosecuted for cultivation. The child is still on bad shape because the parents are refusing Ritalin or other drug therapy, and the doctor won’t write another MM recommendation.
(And by the way, the cops file a complaint against the doctor with the medical board.)
Those are some tough facts. Our experts think that all this harm was caused by the overreaction of the authorities. The Board of course blames the doctor. Neither of the Board’s experts appear to have any experience with small children (they are family practitioners) and neither think MM should be used for anything, because of insufficient peer review literature support.
We one of the country’s leading MM experts, Jeff Hergenrather, M.D. and a physician who ran the UC PACE program for physician training and rehabilitation. Doesn’t seem like a close case expert-wise.
There’s also the little matter that the case may have been filed 8 days after the statute of limitations expired. In fairness, I did spend some time resisting providing medical records (like over two years), but the statute of limitations is a harsh mistress.
Anyway, it should be an interesting case. If any of my friends happen to be in downtown LA this week, stop by: Office of Administrative Hearings, 320 West Fourth Street, Suite 630; Tomorrow (Wednesday) through Friday.
I’ll bring the popcorn!
Rick Jaffe, Esq.