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Winter/Spring 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

Pratitioner's Perspective

By Frank H. Lucido, M.D.
Due to its excellent safety profile and the wide variety of illness for which cannabis can alleviate symptom distress, recommending it —especially to patients who have used it successfully—is not inherently risky. However, due to law enforcement’s institutional bias against cannabis, knowledge of the legal aspect of cannabis consultations is at least as important as the medical knowledge, both to protect the patient and to protect the doctor.
The extent to which physicians’ offices or free-standing cannabis clinics may work with and cross-refer to and from dispensaries is unclear. I consider this to be a thoughtless and short-sighted process — and perhaps unethical. Moreover, cross-referrals to a dispensary could cost the recommending physicians (and any practitioners they employ), the full protection of the Conant decision, which entitles us under the First Amendment to discuss cannabis as a treatment option.
My concerns are:
• Does this close association between dispensaries and recommending physicians impact the quality of the legal protection that is at the heart of a pure medical-legal consultation?
• Will patients have a harder time defending their medical use in court, and/or be brought to court more often when prosecutors think they can discredit sloppy medical consultation work?
• How will the hard-working pioneers of medical cannabis consultation, who have taken the initial risks with the Medical Board and law enforcement, be affected when patients seek out cheaper dispensary-associated clinics and/or providers whose practice standards are so lax as to be open to criticism about the authenticity of the doctor-patient relationship?
Some activists welcome the new wave of clinics that employ physicians’ assistants as a sign of healthy marketplace competition. They contend that doctors charge too much for their services, and patients would benefit from a price war. I disagree (and not out of economic self-interest; I have a thriving family practice and am not dependent on doing medical cannabis consultations.)

A $50 visit is no bargain if the recommendation is indefensible.

There are two important purposes for a medical cannabis consultation: to give the patient competent evaluation and advice, and to provide the patient with the legal protection of the California Compassionate Use Act. Regarding the former, a physician’s assistant is not a physician. Regarding the latter, a $50 visit is no bargain if the recommendation is indefensible. If a patient with deficient documentation gets arrested, the cost of attorney’s fees and court appearances will more than cancel out this kind of savings.
My standard for recommending medical cannabis —requiring documentation that the patient is seeing their primary doctor for the serious illness or symptoms that they treat with cannabis— is geared to making the recommendation “bullet-proof” and avoiding additional expense and inconvenience.
On the occasions when law enforcement calls to verify a recommendation and I am able to say: ‘Not only did the patient consult me about his/her illness, but he/she sees his/her primary doctor regularly for this serious problem,” I almost always receive a polite reply along the lines of “Thank you, we just wanted to make sure it was a valid recommendation.” The big saving for patients is in not having to hire an attorney or go to court.
Some doctors or clinic chains do not make anyone available to testify for patients anyway! As we go to press, the district attorney of Butte County has said
that examination by a physician’s assistant will not suffice for a medical cannabis recommendation. Several patients who got such recommendations from Chico’s “Medi-Cann” clinic asked to be re-seen by the doctor, but their calls to the clinic have not been returned. The clinic has reportedly folded.

Protecting Doctors
I have now reviewed three cases of doctors under investigation by the Medical Board (MBC).
Most recently, I was asked by Americans for Safe Access to review a case of a doctor who was investigated for having recommended medical cannabis to a young adult, whose mother complained to the Board that she found this inappropriate.
The doctor was ultimately charged with five “simple departures” and one “extreme departure” from the standard of care, and was scheduled for a settlement conference prior to a full hearing before an administrative law judge (ALJ).
I reviewed all of the patient’s records, and the MBC expert’s report and accusations. As usual, the expert appeared to be a reasonably competent doctor, but completely inexperienced in the actual standard of care appropriate for a limited medical-legal consultation.
I refuted the expert’s charges in a six-page declaration, which was presented to the Board’s prosecutor and the ALJ. The issues raised in my declaration, and excellent counsel by ASA attorney Joe Elford, resulted in acceptance by the doctor of one “simple departure” (with no license restriction), so as to avoid further legal costs.
Two factors make it more difficult to defend doctors investigated for recommending cannabis:
1. Inadequate documentation of diagnosis.
2. Providing cannabis recommendations in connection with dispensaries or clinics associated with dispensaries, as discussed above.
Although I am willing and able to try to defend doctors in both of these situations. it will be much less expensive for the doctor to avoid these two pitfalls.

Choosing a Consultant
How does one choose a doctor for a medical cannabis consultation?
Here are some qualities that I would suggest patients look for:
1. A good track record: physicians with substantial experience and a high level of comfort with medical cannabis.
2. Ability and willingness to testify in court for you should the patient’s medical use of cannabis be questioned.
3. Willingness to confirm the legitimacy of the cannabis recommendation if contacted by law enforcement (this may save the patient considerable expense for fees for providing court testimony)
4. Adequate and accessible medical record keeping, including supporting documentation from other providers. The physician who requires documentation of ongoing care of the patient’s illness by his or her treating physician, has the easiest time defending that patient to law enforcement.
What patients can do to help their doctors (as well as themselves):
1. Have a primary care provider with whom you consult at least once a year regarding the serious illness or symptoms for which you use medical cannabis.
2. Bring records covering the last 12 months to your medical cannabis re-evaluation each year.

 

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.