Know Your Risks Certifying Patients for Medical Marijuana

Marijuana for medical use entered mainstream medicine in Arizona a decade ago. However, physicians new to Arizona, and those now considering adding certifications to their services, should be aware of the liability risks involved. The Arizona Medical Marijuana Act (“AMMA”) and corresponding Arizona Department of Health Services (“ADHS”) rules govern physicians certifying patients for application to the medical marijuana program. The form isn’t mere paperwork. Failure to comply with the AMMA, ADHS’ rules, and the legal standardof care could result in criminal charges, licensure actions, and/or medical professional liability (“MPL”) claims.

AMMA Requirements and Immunity

The required complicated given that it’s a checklist and an attestation. The Certification form is a list of key certifying physician responsibilities, which include the following:

• Holding a valid license to practice medicine or osteopathic medicine;

• Establishing a physician-patient relationship;

• Creating a medical record and retaining it for at least six years after the adult patient’s last appointment or treatment; 

• Completing a full assessment of the patient’s medical history including reviewing other treating physicians’ records from the previous 12 months and the patient’s responses to conventional medications and therapies;

• Conducting an in-person examination appropriate to the patient’s medical condition within the last 90 calendar days; 

• Diagnosing or confirming a “debilitating medical condition,” including cancer, glaucoma, acquired human immune deficiency syndrome, positive status for human immunodeficiency virus, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s, and any other chronic or debilitating disease or medical condition that includes one or more of the signs, symptoms, or characteristics listed in the statute; (i) 

• Reviewing the patient’s profile on the Arizona Controlled Substances Prescription Monitoring Program (“CSPMP”) database; 

• Explaining the risks and benefits of the medical use of marijuana; and 

• Addressing the potential dangers of marijuana to fetuses and newborns, where applicable.

There are more responsibilities for patients under age 18. 

By signing the Certification form, physicians attest to two things: 1) that, in their professional opinion, the qualifying patient is likelyto receive therapeutic or palliative benefit from the medical use of marijuana, and 2) that the information contained in the form is true and correct. There are serious consequences for falsely attesting to these things.

The AMMA provides immunity from arrest, prosecution, disciplinary action by the certifying physician’s licensing board, and civil penalties for providing the certification. However, immunity does not apply to licensing board sanctions alleging failure to properlyevaluate the patient or violating the standard of care for evaluating and treating the medical condition.

Criminal Charges

The immunity provision of the AMMA was tested in a case involving a patient requesting certification for medical marijuana. The patient was part of a criminal investigation of the certification process and never provided previous medical records. The defendantphysician signed the Certification form anyway. The trial court dismissed the grand jury’s indictment for criminal charges, holding the AMMA immunized the physician against prosecution related to the form. The Arizona Supreme Court disagreed and decided immunityapplied to the provision of written certification but did not extend to all conduct related to the certification process, thus making criminal charges appropriate under the AMMA.

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Licensure Actions

The ADHS reports noncompliance with the mandatory query of the CSPMP to certifying physicians’ licensing boards. Licensing boards generally view noncompliance-but-signing as “unprofessional conduct.” The Arizona Medical Board has specifically determined that completing and signing the Certification form without querying the CSPMP is a “false or fraudulent statement in connection with the practice of medicine” constituting unprofessional conduct.(ii)

MPL Claims​

MPL plaintiffs must prove the defendant physician failed to meet the legal standard of care and the failure caused the plaintiff’s injury. The legal standard of care is what a reasonable prudent physician in the same specialty would have done in the same or similarcircumstances. A jury ultimately decides the legal standard of care for each plaintiff and set of facts based on competing testimony from expert witnesses.

So far, Arizona courts have not reported a decision on negligent evaluation and/or certification for treatment with medical marijuana but here are two scenarios that could result in a MPL claim:

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• The physician reviewed the patient’s medical records from the past 12 months, overlooked a contraindication to medical marijuana, and signed the Certification form. The patient then suffered an injury believed to be caused by medical marijuana. The patient now claims the physician negligently reviewed the medical records resulting in a negligent treatment recommendation. 

• The physician reviewed the patient’s medical records from the past 12 months, including the patient’s responses to conventional treatments; explained the risks and benefits of medical marijuana to the patient; and signed the Certification form. The patient developed a subsequent medical problem, possibly caused by medical marijuana, and learned of alternative treatments for the original medical condition. The patient now claims that while the physician complied with the requirement to explain the risks and benefits of medical marijuana, the physician negligently obtained the patient’s informed consent by not discussing legitimate alternatives to medical marijuana.

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Check your resources before adding certification for medical marijuana to your practice.

• Your business or health care attorney can explain the expenses and consequences of criminal charges and prosecution. 

• The ADHS’ Medical Marijuana webpage offers frequently asked questions and physician-specific information.

• Your MPL insurance carrier’s underwriting department or your broker can address coverages for licensure board actions and MPL claims.

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Citations:

i. The signs, symptoms, and characteristics are cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including signs or symptoms characteristic of epilepsy; or severe and persistent muscle spasms, including signs or symptoms characteristic of multiple sclerosis.

ii. See A.R.S. § 36-2801(3)(b). The Arizona Administrative Code, or ADHS Rules for marijuana for medical use, contains a more detailed list of “debilitating medical conditions.”See 9 A.A.C. 17-201 at p 21. See A.R.S. § 32-1401(27)(u), which states unprofessional conduct, whether occurring in Arizona or elsewhere, includes knowingly making any false or fraudulent statement, written or oral, in connection with the practice of medicine.