Doctors' Legal Risks With Medical Marijuana

Mark Crane

Disclosures

June 04, 2015

In This Article

Medical Marijuana Goes Mainstream

In 1996, California became the first state to allow the medical use of marijuana. Since then, 22 other states and the District of Columbia have enacted similar laws. Hundreds of thousands of patients nationwide now regularly use medical marijuana, and you can be sure that more and more will ask about it.

Are there legal risks to physicians? After contacting national and regional malpractice insurance carriers, along with several state medical societies, we couldn't find a single instance of a physician being sued for malpractice over the negligent recommendation for medical marijuana.

However, although most experts say the legal risk to physicians is small and that state enforcement is often lax, a handful of doctors around the country have lost their medical licenses, and dozens more have been reprimanded by state medical boards for writing certifications for medical marijuana use in an improper or unsafe manner.

In two egregious examples, two Colorado physicians surrendered their medical licenses after the state board suspended them. One doctor wrote a recommendation for a 20-year-old woman whom he never physically examined. The woman was 28 weeks pregnant. The other physician met with new patients in tattoo parlors and hotels to write recommendations, and there was no follow-up care.

Physicians cannot legally prescribe marijuana. The Drug Enforcement Administration classifies it as a Schedule I drug under the Controlled Substances Act, the same class as heroin and LSD. The official federal policy is that marijuana has no accepted medical use and has a high potential for abuse.[1]

However, in 2013, the US Department of Justice advised US attorneys not to pursue actions against physicians in states that allow medical marijuana.[2] The goal of federal policy is to prevent distribution of marijuana to minors; prevent sales revenue from going to criminal enterprises, gangs, and cartels; prevent diversion from legal to nonlegal states; and prevent state-authorized activities as a cover or pretext for trafficking of other illegal drugs.

Physicians can only write letters of recommendation that the patient qualifies for a certification to use the substance, and only after a thorough examination and many other requirements. Physicians cannot dispense marijuana. The patient must go to a licensed dispensary to obtain the drug.

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