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LEGAL-EASE: As More States Approve Medical Marijuana, Liability Guidance for MDs Remains Vague

Samson, Kurt

doi: 10.1097/01.NT.0000451833.57970.30


With a growing list of states either having approved or moving toward approval of medical marijuana for a range of illnesses, including neurologic disorders, there remain concerns about the legal, regulatory, and other risks if neurologists and other physicians certify their qualified patients for cannabis.

To date, 21 states and the District of Columbia have approved medical marijuana, and an additional seven states have pending legislation or ballot measures. Still, many physicians remain wary about potential legal and/or liability issues if they recommend marijuana because it remains a Schedule I drug under the federal Controlled Substances Act.

The US Food and Drug Administration (FDA) has not approved smoked marijuana for any condition. Natural and synthetic agents containing variations of its psychoactive ingredient have been approved, but only for chemotherapy-associated nausea and to stimulate appetite in HIV patients. The agency has, however, granted clinical trials testing preparations for other medical conditions, including autoimmune diseases, inflammation, pain, seizures, substance abuse, and psychiatric disorders.

A new systematic review released by the AAN in April concluded that marijuana-related preparations appear to help alleviate spasticity, central or spasm-related pain, and some multiple sclerosis symptoms, but it found little evidence for treating epilepsy or movement disorders. The AAN's Guideline Development Subcommittee also expressed concern about the drug's potential side effects and potential for abuse.

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Some states have already approved medical marijuana for symptoms of other neurological disorders, despite a paucity of supporting evidence. For example, Michigan, Oregon, Arizona, and Delaware include agitation due to Alzheimer's disease, while New Mexico, Delaware, Arizona, and New Jersey allow certification for symptoms of amyotrophic lateral sclerosis.

“Personally, I would view state lists of permissible uses as the outer limits of conditions for which I would recommend cannabis,” Daniel Larriviere, MD, JD, FAAN, acting chair of the department of neurology at Ochsner Neuroscience Institute in New Orleans, who also chairs the AAN's Ethics, Law and Humanities Committee, told Neurology Today.

“I would probably try and restrict my recommendations to the evidence base, which is a much smaller list. Maybe in the future, when there is more evidence that medical marijuana could be helpful for these other neurological conditions, I might be more willing to recommend it than I would today,” Dr. Larriviere added.

The clearest sign regarding enforcement of federal law came in an August 2013 memorandum from the Deputy Attorney General of the Department of Justice. The memorandum stated that the federal government will defer to state law enforcement and regulatory agencies regarding recreational and medical marijuana, provided they have in place strict regulatory systems to ensure compliance with eight priority areas, including prevention of driving under the influence. The memorandum also stated that if any problems emerge — because, for example, a state does not have a strict regulatory scheme on compliance in these areas — federal prosecutors “will act aggressively to bring individual prosecutions” or the Department of Justice might challenge the state regulatory scheme.

On May 30, the Republican-controlled US House of Representatives approved a bipartisan-backed bill that would block the DOJ and DEA from interfering with states that have approved the use of medical marijuana, including patients and their medical providers. Sponsored by Rep. Dana Rohrabacher (R-CA), the measure must still be approved by the US Senate before reaching President Obama and, potentially, becoming law.

The bill, which passed by a 219 to 189 vote, marks a turning point in medical marijuana legislation at the national level. Six prior measures have failed in the House.

Dr. Larriviere noted that because physicians are not prescribing medical marijuana, only recommending it, it is hoped that the federal government will not consider them to be in violation of the Controlled Substances Act and that the risk of federal intervention will be minimized. Whether neurologists in states where medical marijuana is legal certify patients depends on the individual physician, the patient, and available evidence supporting its use.

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“Right now there is a horrible balkanization of medical marijuana laws by state, and each one is different. It is a disaster,” commented Dwight Merriam, Esq., a partner at Robinson & Cole LLP, in Hartford, CT, and past chair of the American Bar Association's Section of State and Local Government Law.

Individual states have different provisions for physicians and conditions that qualify for certification, while the federal government has not changed its position regarding marijuana as a Class I drug with no clear medical benefits. State and federal court decisions have supported the right of physicians to counsel and advise patients on potential benefits of medical marijuana, and a Department of Justice memoranda, as well as President Obama's own stated non-enforcement policy (NEP), has not quelled doctors' uneasiness, Merriam told Neurology Today in a telephone interview.

For physicians, especially those practicing in different states with different medical marijuana laws, this can be a real problem, especially since different laws specify different qualifying medical conditions, he noted.

“Remember, all state laws require that these conditions be disabling and that other treatment options have failed to provide sufficient relief,” Merriam said.

There also continues to be a semantic debate over whether or not certifying is the same as prescribing the drug. Often overlooked in the debate are federal real estate, banking, and other laws that could impact physicians if they certify patients, despite a state law, he continued.

“If a physician is paid for diagnosing a qualifying condition and issuing a patient a certificate, what rules apply to bank deposits? And there are other considerations, such as certifying a patient living on a military base, or their spouse or dependent. Or what if a patient lives near a drug-free school zone?”

At a recent meeting of attorneys, he said, a large majority expressed the opinion that if marijuana were simply made a Class II drug by the Drug Enforcement Administration, it would help solve the problem.

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The states that allow physicians to recommend and certify patients generally specify that there must be a bona fide doctor-patient relationship, said Diane Hoffmann, JD, a professor of law and director of the Law and Health Care Program at the University of Maryland Law School in Baltimore.

She told Neurology Today that what the Supreme Court has done is say that under the Commerce Clause, Congress may criminalize the production and use of marijuana even where states have legalized or decriminalized its use for medical purposes.

Dr. Larriviere added that it is difficult to predict how many neurologists will be willing to get involved in medical marijuana states.

“Physicians generally are risk-averse,” he said, “so my guess is that we will not see a large number of neurologists recommending medical marijuana initially. However, five years from now, who knows?”

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