Doctors' Legal Risks With Medical Marijuana

Mark Crane

Disclosures

June 04, 2015

In This Article

Malpractice Risks of Medical Marijuana?

As noted earlier, we couldn't find a single malpractice case relating to medical marijuana. Legal experts say it's difficult to see how such a lawsuit would be successful, assuming that a patient who asked for a recommendation and received one would even want to sue.

"Physician liability is fairly limited because doctors cannot prescribe or dispense marijuana," said COPIC's Dean McConnell. "They only certify that the patient has a qualifying condition and that they think the potential benefits would probably outweigh the health risks for a patient."

However, plaintiffs' attorneys are a creative bunch, and if a lawsuit is filed, "it would probably mimic a suit for a doctor who improperly prescribes opioids," he said. "The allegation would be that he shouldn't have recommended it in the first place, didn't do an adequate exam, or didn't warn of the potential for addiction. But because doctors don't prescribe marijuana or control the dosage, it's hard to see how such a lawsuit could succeed."

James Lewis Griffith Sr, a veteran malpractice attorney in Philadelphia, agrees. "The malpractice aspect is going to be rather esoteric. In most states, there is no requirement of informed consent with respect to prescription medications. Most careful physicians limit the renewal of opiates and other habit-forming medications. They continue to monitor the patient's use of medications. But writing a recommendation for marijuana isn't the same as prescribing it."

Even so, insurers and attorneys suggest that physicians follow sensible risk-management guidelines to avoid the possibility of a lawsuit or disciplinary action.

"I would recommend that doctors use a specific written disclosure form, to be signed by the patient, noting that the possible addictive properties of marijuana and smoking were discussed," said Griffith. "The form should note that the marijuana is given in reliance on the patient's statement of their condition, the need for pain relief, their diagnosis, and the patient's waiver of any risks associated with the drug's use. It would certainly help in a lawsuit, but it would also help in the event of a visit from the law enforcement folks."

COPIC's McConnell said physicians should educate patients about the dangers of edible marijuana. "Some look like candy, and young children have been hospitalized after ingesting them. The packaging mimics that of common products. The marijuana can be in the form of lollipops, gummy bears, et cetera. And people really have to pay attention to the dosing with edibles."

The Doctors Company, based in Napa, California, and the nation's largest physician-owned medical malpractice insurance company, has these recommendations. "As with any type of prescription for chronic pain, anxiety, or other debilitating conditions, document the specific rationale for the decision to recommend marijuana," said Robin Diamond, senior vice president of patient safety and risk management. "Discussion with the patient should include risks and benefits, as well as alternatives to marijuana."

Although no malpractice suits have yet been filed, there are still potential liability risks that are similar to those for other drugs. "The physician could be liable for failing to discuss the risks of the drug, such as driving under the influence or suicidal thoughts," she said. "Liability could arise from drug/drug interactions. The drug may not be appropriate for the patient's condition, and patients may have reactions to the drug."

Attorney Max Beach agrees. An informed consent discussion should include information about side effects, the possibility of addiction, short- and long-term cognitive effects, psychiatric conditions ranging from anxiety and depression to psychosis, obstructive lung disease, lung cancer, motor vehicle accidents, and reproductive risks.

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