Doctors' Legal Risks With Medical Marijuana

Mark Crane


June 04, 2015

In This Article

Notify Your Malpractice Insurer and Health Plan?

Insurers want physicians to inform them if they plan to certify patients for medical marijuana. "How often do they do it? Are they associated with dispensaries? That's information we need to know, so we can weigh it in terms of how risky they are," said McConnell.

We haven't found any carriers who specifically exclude doctors from coverage if they recommend medical marijuana. "There is no specific exclusion for claims resulting from physician recommendations of medical cannabis if authorized by state law in the state where they practice," said David B. Troxel, MD, medical director of The Doctors Company.

"However, a claim alleging a criminal act, or violation of any statute, code, ordinance or regulation may be excluded under their policy," he said. "To the best of our knowledge, we have not had claims where prescribing or recommending marijuana use was the basis of a malpractice allegation. However, there are always risks when prescribing any medication or substance, including failure to inform the patient about known risks and complications (side effects), interactions with other drugs, inappropriate dosages, allergic reactions, et cetera."

"Any decision as to whether to recommend or certify medical use of marijuana should be made in consultation with the physician's own legal counsel and/or legal counsel for any healthcare facility with which the physician is affiliated," the Massachusetts Medical Society advises.[7]

"Hospitals, community health centers, nursing homes and health plans that participate with Medicare or Medicaid are required to sign an agreement that they comply with all federal laws," said Bill Ryder, the society's legislative and regulatory counsel. "There was some concern that there could be an issue with any facility that gets federal money.

That's why we urge doctors to make sure the facilities they work with are comfortable with what you plan to do. None of those facilities will allow recommendations for medical marijuana use on their premises, and they may not allow it for doctors associated with them. It's ill-advised for any member of the medical staff to just jump into this without letting someone know."

Physicians in Massachusetts may not practice without medical malpractice coverage. "For a primary care doctor who has an existing relationship with his patient and certifies the patient for medical marijuana, there's not likely to be any coverage problem," said Ryder. "But take a doctor who participates in a walk-in marijuana dispensary, moonlights there, and certifies many patients. Is his malpractice carrier aware of this? He may not be covered in the event of a malpractice claim."

Despite the potential risks, physicians who carefully follow their state laws and aren't directly associated with marijuana dispensaries should have little to fear from state medical boards or plaintiff attorneys, legal experts say.


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