This chapter discusses the legal liabilities of those in the medical profession who recommend or distribute marijuana to be used as a medicine. This is commonly known as “medical” marijuana and refers to marijuana that is used for medical purposes under some state laws but has not been approved by the FDA as a medicine.
The “marijuana industry” referred to here are those who illegally, negligently, or fraudulently produce, market, or distribute marijuana. “Illegally” includes being against federal law. The marijuana industry also includes front groups and pro-marijuana lobbying organizations and periodicals, and those seemingly independent third parties, who spread false and deceptive statements about the risks and benefits marijuana. It includes medical care providers and “dispensaries” and caregivers who recommend or distribute marijuana. See U.S. v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (DDC 2006), aff’d in part, vacated in part, 566 F.3d 1095 (DCC 2009)
We use the term “medical care provider” because a physician can recommend marijuana or under some state laws a physician’s assistant, nurse, or other professional may be licensed to “recommend” and not prescribe marijuana.
The problem for medical care providers is that most are woefully uninformed or misinformed about marijuana. In 2019, the JAMA online network published an article by Nathanial P. Morris, MD, titled “Educating Physicians About Marijuana.” It showed the lack of knowledge among current medical providers about the risks associated with marijuana use. The article demonstrated that just 9% of medical schools had documented content on medical marijuana. A study of 51 resident physicians found that 76% did not know which category marijuana belonged to under the Controlled Substances Act. It is a Schedule I drug, signifying a high potential for abuse and no accepted medical uses.1
Botanical Marijuana Poses Many Problems for Medical Care Providers
Botanical marijuana products are sold in “dispensaries” under state law. As used herein, the term “botanical marijuana” describes the illicit Schedule I drug that is derived from the leaves and flowering tops of the cannabis plant and is consumed in a variety of ways. The dried plant material is most often rolled in paper and smoked as a cigarette, called a “joint.” It is often placed in smoking devices called “bongs,” smoked in pipes, or smoked in “blunts,” which are cigars from which the tobacco has been removed and replaced with marijuana. Sometimes it is baked in cookies or brownies and eaten, or brewed in tea and drunk. Concentrates such as oils can be derived from botanical marijuana that can also be consumed in many ways such as vaping. Other methods for consuming the drug are constantly being developed by the drug culture.
- 1.
They are not homogeneous and are not a single or consistent substance.
- 2.
THC content can vary widely depending on the strain, growing techniques, storage, and harvesting and other production practices.
- 3.
The many methods of consumption do not guarantee that a patient will receive an identifiable, standardized, reproducible dose. As a result, patients cannot have certainty they will experience consistent “benefits” or side effects. They may also unwittingly ingest an excessive dose that causes very unpleasant effects.
- 4.
Many sources document that marijuana products often have chemical contamination, pesticides, heavy metals, mold, fungus, and false claims, even in “regulated” marijuana states. Many CBD products have been demonstrated by the FDA to not be pure or safe and many CBD companies have made false medical claims and have misled medical care providers.3
- 5.
The botanical marijuana distribution system does not equate to the system created by the FDA. Warnings are absent or inadequate, and unqualified non-medical dispensary staff routinely offer medical advice.
- 6.
Medical care providers are in a conflict when it comes to marijuana used a medicine. On one hand, the state laws make them the gatekeepers of a patient’s access to botanical marijuana, yet there is not enough reliable scientific information for medical care providers to provide effective advice and monitoring. The states normally do not provide a vehicle for data collection on the safety or efficacy of marijuana or to report adverse events such as required with FDA-approved medicines. As a result, medical care providers do not know if medical conditions are improved by use of marijuana or if there are contraindications or interactions with other drugs the patient is using. A medical care provider should not recommend marijuana when the provider does not have adequate information on the marijuana’s composition, dosage, side effects, or what patients are appropriate. This is especially a concern due to the rise in potency of marijuana that heightens the risk of addiction and other side effects such as suicide.
- 7.
People who use high-potency marijuana get intoxicated and that may mask symptoms that prevent the medical care provider and the patient from identifying the progression of their condition and may hinder patients from obtaining more appropriate treatment. Some marijuana products are now 99% THC.4
Many production variables influence the strength, quality, and purity of botanical marijuana. THC concentration and other cannabinoids in marijuana can vary greatly depending on growing conditions and the parts of the plant collected (flowers, leaves, stems, etc.), genetics of the plants, and processing. This lack of consistency of concentration of delta 9-THC in botanical marijuana from diverse sources makes the interpretation of clinical data very difficult.5
Vaping and Other Devices for Ingesting or Inhaling Marijuana
Drug paraphernalia such as vaporizers can be used to ingest, inhale, or otherwise introduce “medical” marijuana into the human body. When a medical care provider or dispensary sells or recommends a vaping device for “medical” marijuana, there are FDA issues to consider. This now makes the drug paraphernalia into “medical devices” for the delivery of a medical drug. Medical devices are strictly regulated by the FDA.6
The term “device” means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is “intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals” 21 U.S.C.A. § 321(h)
- 1.
The persons for whose use the device is represented or intended;
- 2.
The conditions of use for the device, including conditions of use prescribed, recommended, or suggested in the labeling or advertising of the device, and other intended conditions of use;
- 3.
The probable benefit to health from the use of the device weighed against any probable injury or illness from such use; and
- 4.
The reliability of the device. 21 C.F.R. § 860.7
- (a)
Statements of all conditions, purposes, or uses for which such device is intended, including conditions, purposes, or uses for which it is prescribed, recommended, or suggested in its oral, written, printed, or graphic advertising, and conditions, purposes, or uses for which the device is commonly used; except that such statements shall not refer to conditions, uses, or purposes for which the device can be safely used only under the supervision of a practitioner licensed by law and for which it is advertised solely to such practitioner.
- (b)
Quantity of dose, including usual quantities for each of the uses for which it is intended and usual quantities for persons of different ages and different physical conditions.
- (c)
Frequency of administration or application.
- (d)
Duration of administration or application.
- (e)
Time of administration or application, in relation to time of meals, time of onset of symptoms, or other time factors.
- (f)
Route or method of administration or application.
- (g)
Preparation for use, i.e., adjustment of temperature, or other manipulation or process. See 21 Code of Federal Regulations 801.5.
Since vaping has also caused some deaths and illness, vaping promoted by a marijuana seller or medical care provider could lead to liability or licensing actions or action by the FDA.
Federal Scheduling of Marijuana
“Medical” botanical marijuana that is not approved by the FDA is classified under federal law as a Schedule I drug because: (1) the drug has a high potential for abuse; (2) the drug has no currently accepted medical use in treatment in the United States; and (3) there is a lack of accepted safety for use of the drug under medical supervision. 21 U.S.C. §§ 811, 812(b). Gonzales v. Raich, 545 U.S. 1, 15 (2005).
The DEA and FDA recently decided to keep “medical” marijuana as a Schedule I drug. Elansari v. United States, 2016 WL 4415012 (MD PA 2016); US v. Pickford, 100 F.Supp.3d 981, 1007–1009 (D CA 2015).7
Federal Standard of Care
A medical care provider can be liable to a patient, or a third party, for the damaging consequences of violating a standard of care. A medical care provider who recommends marijuana in violation of federal law may face a malpractice claim for recommending a drug for which there is no standard of care or approval under federal law. One court held that “the presence of FDA marketing approval obviously is powerful evidence that a drug has currently accepted medical use and accepted safety for use under medical supervision.” John Doe, Inc., v. Drug Enforcement Administration, 484 F.3d 561, 571 (CA DC 2007).
Marijuana products not approved by the FDA may be neither safe nor effective and put patients at risk. 21 U.S.C. § 321 (g)(1) and (p). The FDA has only approved one botanical marijuana product as a medicine, so all of the other medical claims for botanical marijuana should be considered to be false claims under the Food, Drug and Cosmetic Act (FDCA). 21 U.S.C. 321(g)(1) and (p); 21 U.S.C. 331 and 355 (b)(1) (drug must be safe and effective in use).
The federal Controlled Substances Act (CSA) provides that “except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 489 (2001) (citing 21 U.S.C. § 841(a)(i)). “Medical” marijuana is a Schedule I controlled substance that cannot be distributed outside of approved research projects and it is illegal for any purpose under federal law even though a number of states have legalized it for medical reasons and several states have decriminalized it for personal use. See also United States v. Dinh, 194 F. Supp. 3d 353, 356–57 (WD PA 2016) (“Despite the Commonwealth of Pennsylvania’s enactment of its medical marijuana law, the distribution of marijuana remains illegal under federal law.”). Arguments challenging the enforcement of federal marijuana laws have been repeatedly raised and summarily rejected by the courts.
The one botanical cannabinoid approved by the FDA as a medicine is Epidiolex, a pure CBD product. All other botanical marijuana/cannabis products (including CBD) dispensed under state law are illegal under federal law. The FDA has also approved synthetic prescription THC cannabinoids such as Marinol and Syndros for treatment of anorexia associated with weight loss in AIDS patients and chemotherapy-associated nausea.8
- 1.
The drug’s chemistry must be known and reproducible.
- 2.
There must be adequate studies showing it is safe to use.
- 3.
There should be adequate and well-controlled studies showing proof of efficacy.
- 4.
The use of the drug must be accepted by qualified experts.
- 5.
The scientific evidence for the above must be widely available. Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131,1135 (CA DC 1994).
The FDA and the DEA have held that “medical” marijuana has not met these tests. The quality of the studies cited by the marijuana industry for “medical” marijuana does satisfy FDA standards for safety and effectiveness.9
Cannabis and cannabis-derived products claiming in their marketing and promotional materials that they’re intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases (such as cancer, Alzheimer’s disease, psychiatric disorders and diabetes) are considered new drugs or new animal drugs and must go through the FDA drug approval process for human or animal use before they are marketed in the U.S. Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of the law, but also can put patients at risk, as these products have not been proven to be safe or effective. This deceptive marketing of unproven treatments raises significant public health concerns, as it may keep some patients from accessing appropriate, recognized therapies to treat serious and even fatal diseases.10
Can “Medical” Marijuana Be Prescribed?
Because “medical” marijuana is not approved as a medicine by the FDA, it cannot be prescribed because medical care providers have to follow federal law in writing prescriptions. 21 CFR § 1306.04; Wilcox v. Louisiana State Bd. of Medical Examiners, 446 So.2d 502 (Ct. App. La. 1984). “Medical” marijuana can be “recommended” under the state law, but in practice a prescription and a recommendation are the same. This is fraught with liability
States’ Rights
“Medical” marijuana is not a “states’ rights” issue. The US Supreme Court has twice upheld as constitutional the application of federal law to the intrastate growth and possession of marijuana for personal medicinal purposes as recommended by a doctor. The Supremacy Clause of the US Constitution unambiguously provides that if there is any conflict between federal and state law, federal law prevails. Gonzales v. Raich, 545 U.S. 1 (2005). See United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 490 (2001) (Holding that there is no medical-necessity exception to federal law prohibitions on manufacturing and distributing marijuana); United States v. Wilde, 74 F.Supp.3d 1092, 1098 (NDCA 2014) (Federal courts have repeatedly rejected constitutional challenges to the classification of marijuana under federal law when applying traditional rational basis review); Kuromiya v. U.S., 37 F. Supp. 2d 717, 725 (EDPA. 1999). (There is no constitutional provision creating a fundamental right to possess, use, grow, or sell marijuana.)
It is indisputable that state “medical” marijuana laws cannot supersede federal laws that criminalize the possession of marijuana. US v. Hicks, 722 F.Supp.2d 829 (ED MI 2010).
Aiding and Abetting
Under some state “medical” marijuana laws, physicians provide written instructions for a registered qualifying patient or his care giver to present to a dispensary concerning the total amount of usable marijuana that a patient may be dispensed. This is far more than just a physician discussing with a patient the use of medical marijuana that may be protected by the First Amendment of the Constitution. This is taking an action to facilitate the use of marijuana. These actions by a physician violate federal law by aiding and abetting by acting with specific intent to provide the patient with the means to acquire marijuana knowing that the patient intends to acquire marijuana. Conant v. Walters, 309 F.3d 629 (CA 9 2002); cert denied Walters v. Conant, 540 U.S. 946 (U.S. Oct 14, 2003)
Legal Claims Against Medical Care Providers
The claims in lawsuits against the tobacco, opiate, and prescription drug industries can be used against the marijuana industry. Examples of the many claims that can be brought are found in Strayhorn v. Wyeth Pharmaceuticals, Inc., 882 F. Supp. 2d 1020 (WD TN 2012).
Malpractice and Negligence
- 1.
That the Defendants were negligent under the law
- 2.
That such negligence was the legal cause of damage to the Plaintiff11
Negligence Basics
Negligence is the failure by the Defendant to use reasonable care. Reasonable care is the degree of care a reasonably careful person would use under similar circumstances. Negligence is either taking an action that a reasonably careful person would not do under similar circumstances, or it is failing to take an action that a reasonably careful person would do under similar circumstances.
In the case of a medical care provider, it is the duty to apply to the diagnosis and treatment of a patient the ordinary skills, means, and methods that are recognized as necessary, and that are customarily followed in the diagnosis and treatment of similar cases, according to the prevailing professional standard of care of reasonably prudent medical care providers who are qualified by training and experience to practice in the same field or specialty in the community or a similar community. In general, medical care providers do not receive any or very little training on “medical” marijuana. There is no standard of care that is generally recognized.
It Can Be Malpractice to Recommend Treatments Not Approved by the FDA12
A medical care provider may be civilly liable to his patient, or a third party, for the damaging consequences of recommending marijuana. A physician who assists a patient to obtain marijuana may face a professional negligence claim for recommending a drug for which no standard of care has been adopted and which has an unknown likelihood of future harm.
Medical care providers who recommend “medical” marijuana that is not approved by the FDA should find it very difficult to demonstrate that they have provided good quality care or met the standards of care within accepted medical practice. The problem for these medical care providers is that the necessary medical research on marijuana as a medicine and its effectiveness, risks, benefits, dosages, interactions with other drugs, and impact on pre-existing conditions is not available. The science shows that marijuana is not safe or effective, or studies have not been done, or if studies have been done, marijuana’s effect is minimal and the studies are not up to FDA standards. In addition, there may be poor or no quality controls in the manufacturing process for marijuana products many of which are full of contaminants.
Normally medical care providers have relied on the FDA process for approving medicines to protect them from liability should a drug turn out to be unsafe. However, when it comes to marijuana, the burden of proof of safety and effectiveness has not been met and the FDA has not approved marijuana. For medical care providers recommending a non-FDA approved medicine drug requires an unsubstantiated guess that “medical” marijuana that is not approved by the FDA will turn out to be safe and effective and not cause “future harm” to the patient.
Informed Consent
A medical care provider must obtain the patient’s informed consent before the medical care provider may treat the patient. The medical care provider has a duty to explain, in terms understandable to the patient, what the medical care provider intends to do before subjecting the patient to a course of treatment. The purpose of this legal requirement is to protect each person’s right to self-determination in matters of medical treatment. There is also a duty to warn the patient of the risk of marijuana use.
- 1.
A duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances. The medical care provider must tell the patient not only about the alternatives that the medical care provider recommends, but also about all medically reasonable alternatives that the medical care provider does not recommend. The medical care provider must discuss all medically reasonable courses of treatment, including non-treatment, and the probable risks and outcomes of each alternative. This is to ensure the patient’s right to make an informed choice and effectively makes the choice for the patient.
- 2.
A duty to explain, in words the patient can understand, all material medical information and risks. Medical information or a risk of a medical procedure is material when a reasonable patient in the plaintiff’s position would be likely to attach significance to it in deciding whether or not to submit to the treatment.
- 3.
The medical care provider is not required to disclose to the patient all the details of a proposed treatment or all the possible risks, no matter how small or remote. The medical care provider is not required to communicate those dangers known to the average person or those dangers the patient has already discovered. Taking into account what the medical care provider knows or should know to be the patient’s need for information, the medical care provider must disclose the medical information and risks which a reasonably prudent patient would consider material or significant in making the decision about what course of treatment, if any, to accept. Such information would generally include a description of the patient’s physical condition, the purposes and advantages of the proposed treatment, the material risks of the proposed treatment, and the material risks if such treatment is not provided, as well as the available options or alternatives that are medically reasonable under the circumstances and the advantages and risks of each alternative.13
The problem for medical care providers, hospitals, and marijuana dispensaries is that there is very little good quality scientific information on “medical” marijuana to provide to patients. They are flying blind.
Duty to Warn
- A.Inadequate warnings about nonobvious risks that the medical care provider knew or should have known may render a product “defective or unreasonably dangerous.” Plaintiffs may have a claim that the marijuana industry fails to warn people about the many acute effects of THC. Medical care providers have a duty to warn the patient about the risks of marijuana use. There are several types of risks from marijuana use that could require warnings:14
- 1.
The possibility of a harmful interaction between marijuana and a food, beverage, dietary supplement (including vitamins and herbals), or another drug. Combinations of any of these products could increase the chance that there may be interactions.
- 2.
The chance that marijuana may not work as expected.
- 3.
The possibility that marijuana may cause additional problems such as side effects.
- 4.
The improper use of marijuana edibles.
- 5.
Product dangers such as misrepresenting marijuana as safer than alternatives such as opiates.
- 6.
Adverse incidents such as overdoses, death, mental illness, suicide, etc.
- 7.
Addiction risks and withdrawal from marijuana.
- 8.
The harmful nature of marijuana or its side effects that the medical care provider purposefully or negligently failed to keep informed.
- 9.
There may be health risks associated with the consumption of marijuana.
- 10.
The product is intended for use only by patients of a certain age under state law.
- 11.
The product is unlawful outside the state.
- 12.
There may be additional health risks associated with the consumption of marijuana for women who are pregnant, breast-feeding, or planning on becoming pregnant.
- 13.
The risk of driving or operating heavy machinery while using marijuana.
- 14.
Marijuana and its potency.
- 15.
The product was produced without regulatory oversight for health, safety, or efficacy.
- 16.
The intoxicating effects of this product may be delayed.
- 1.
- B.
State or federal adverse events, warning letters, citations for violations
If there is evidence of any adverse event reports (AERs) such as citations by a state agency for contamination problems, such evidence could be used to show that the defendants did not take certain steps to ensure their products were safe for consumers. In such cases if they also took no steps to warn, they could have failure-to-warn and design defect claims filed against them. For example, the state of Colorado publishes contamination reports and the FDA issues warning letters.15
- C.
Marijuana use is associated with many health problems, and medical care providers have a duty to warn patients of these risks.
The California Environmental Protection Agency concluded that marijuana smoking is statistically significantly associated with cancer of the lung, head, and neck, bladder, brain, and testis. Parental marijuana smoking before or during gestation has been statistically significantly associated with childhood cancer.16
There is a causal link between marijuana use and strokes and heart attacks. 17
CBD can cause liver injury.18
Studies show that chronic use of marijuana can lead to recurrent bouts of severe nausea, vomiting, and dehydration that can result in kidney failure and/or death.19
The marijuana industry may claim that marijuana is not addictive but that is not accurate.20
The use of marijuana can lead to mental illness, acts of suicide, and violence.21 Marijuana is the number one substance found in suicides of young people in Colorado who are 15–19 years old.22
The use of marijuana products can worsen glaucoma.23
Marijuana has been linked to infertility.24 Low birth weight caused by maternal marijuana use sets the stage for infections and time spent in neonatal intensive care.25 Marijuana use can cause impaired neurodevelopment and other damage from paternal and maternal and fetal exposure to marijuana.26
- D.
The “learned intermediary doctrine”
The “learned intermediary doctrine” applies where manufacturers of unavoidably unsafe products who have a duty to give warnings may reasonably rely on intermediaries such as medical care providers to transmit their warnings and instructions. A medical care provider is a “learned intermediary” only if the medical care provider receives adequate warnings from the manufacturer; thus, the learned intermediary doctrine does not shield a drug manufacturer from liability for inadequate warnings to the physician. A drug manufacturer’s duty to give adequate warnings is judged by the effect the warning has on the medical care provider and not the patient. Motus v. Pfizer, Inc., 127 F. Supp. 2d 1085 (C.D. Cal. 2000)
- E.
Manufacturers’ Warnings
Marijuana manufacturer’s instructions and warnings can be used to establish a standard of care. For example, the Marinol warnings put medical care providers on notice that it has the potential for harm and must be used only in a controlled manner with dosages regulated and patients subject to monitoring.27
Failure to Provide Proper Documentation
- 1.
The location and date when the “medical” marijuana was administered
- 2.
All diagnoses that led to the recommendation to use marijuana
- 3.
Detection and treatment of side effects of “medical” marijuana
- 4.
Prior use of marijuana
- 5.
The amount or dose of “medical” marijuana and refills
- 6.
All warnings given28
Labeling of Marijuana Used as a Medicine
- 1.
Indications and usage
- 2.
Dosage and administration
- 3.
Dosage forms and strengths
- 4.
Contraindications
- 5.
Warnings and precautions
- 6.
Adverse reactions
- 7.
Drug interactions
- 8.
Use in specific populations
- 9.
Drug abuse and dependence
- 10.
Overdosage
- 11.
Description
- 12.
Clinical pharmacology
- 13.
Nonclinical toxicology
- 14.
Clinical studies
- 15.
References
- 16.
How supplied, stored, and handled
- 17.
Patient counseling information29
The problem is that this information does not exist for the forms of “medical” marijuana that are sold on the state level.
Apparent Authority
If a hospital or marijuana dispensary uses a medical care provider, the defendant hospital or marijuana dispensary or dispensary may be liable for the medical care provider’s negligence under a theory of “apparent authority.” Apparent authority arises where a hospital or marijuana dispensary, through its actions, holds out a particular medical care provider as its agent and/or employee in a manner that leads a patient to reasonably believe that the medical care provider is rendering treatment on behalf of the hospital or marijuana dispensary. Thus, liability is determined based on the hospital or marijuana dispensary’s actions rather than merely the existence of a contractual relationship. Many marijuana dispensaries are storefronts with a “doctor” inside who gives out recommendations for questionable reasons.30
Failure to Conduct a Proper Examination
The state laws permitting marijuana as a medicine often require medical care provider to recommend marijuana for a wide variety of medical conditions often without any documentation or a through medical examination. A medical care provider cannot exercise a competent medical judgment because the medical research does not show that marijuana is safe and effective or what are the proper dosages, interactions with other drugs, or the impact on pre-existing conditions. In addition, if there are already safe and effective drugs that have been approved by the FDA, the use of marijuana is very suspect.31
Third-Party Endangerment
A medical care provider can have a duty to protect unidentifiable, unknown third parties, who are endangered by a patient’s treatment. Medical care providers can be liable if they fail to warn patients about the possible side effects of marijuana and the patient injures someone in a traffic accident because use of marijuana diminishes physical and mental abilities. Marijuana significantly impairs driving including time and distance estimation and reaction times and motor coordination.32
Loss of a Chance Doctrine
The “loss of a chance” doctrine applies when a medical care provider fails to diagnose an illness and the delay in treatment reduces the plaintiff’s chances of survival. Use of marijuana instead of conventional treatment could also cause a loss of a chance to get well when a patient tells a medical care provider an anecdotal story of relief and cure provided by use of marijuana and requests treatment by marijuana. This all too frequent situation puts medical care providers in the position of accepting the self-diagnosis of the patient, thus missing the correct diagnosis and delaying proper treatment and possibly putting the medical care provider at risk of future lawsuits by patients or their families.33
Aggravation (Exacerbation) of a Pre-existing Condition
In the case of marijuana, its toxic and other negative effects can possibly cause an aggravation of a pre-existing condition. Examples are AIDS, glaucoma, and seizures. The aggravation of a pre-existing ailment or medical condition can be a separate element of compensable damages.34
Future Harm
Medical care providers can also be liable for causing future harm to a patient. Use of marijuana, particularly high potency marijuana, can cause a variety of harms.35
It is clear that use of marijuana can cause future harm or injury and cause fear for a plaintiff that such an injury may materialize in the future. Science shows that marijuana affects the reproductive process, damages unborn children, has more carcinogens than tobacco, is addictive, and is often a precursor drug to the use of other substances and many other harms. The use of marijuana and the later development of serious illnesses have many “future harm” implications as is the case with the use of tobacco.36
Emotional Distress: Intentional and Unintentional
Depending on state law, there may be emotional distress claims. These can be claimed in some cases even if there is no physical injury such as emotional distress based on a reasonable fear of an enhanced risk of disease if that fear was proximately caused by the negligent conduct of the medical care provider.
Respondeat Superior/Vicarious Liability
- 1.
Allowing a federally controlled substance such as marijuana to be used in violation of federal law.
- 2.
Failing to educate medical care providers on marijuana and its dangers and side effects and proper use and dosage under state law. There is no proper use and dosage under federal law.
- 3.
A failure to stop a medical care provider who is giving a wrong dose of marijuana or causing addiction.
- 4.
Failure to consult with experts in a particular area of treatment.
- 5.
If the hospital supplied marijuana, they could be sued for breach of warranty for any injuries because the hospital is a supplier of marijuana.
- 6.
Lack of informed consent to use marijuana which is an unapproved medicine.
- 7.
Medical experimentation with marijuana.37
Other Claims
- 1.
Failing to detect or treat marijuana’s side effects
- 2.
Failing to keep up on the science on marijuana
- 3.
Failing to be aware of contraindications to marijuana use
- 4.
Failing to have a bona fide physician-patient relationship
- 5.
Allowing the patient to become addicted to marijuana
- 6.
Failing to use alternative safer FDA-approved medical treatments
- 7.
Failing to properly monitor the patient who is using marijuana
- 8.
Failing to properly to dose marijuana. Deriving a standardized botanical dose poses major difficulties – especially with marijuana when there are widely varying strains and large numbers of marijuana components about which little is yet known
Loss of Malpractice Insurance
Medical care providers should check to see if their malpractice insurance covers them when recommending or being involved in dispensing “medical” marijuana.38
Conclusion
The use of “medical” marijuana as a medicine that has not been approved by the FDA is fraught with liability for medical care providers, especially when there are FDA approved medications that should be tried first. Lawsuits and loss of licenses could be the result.
This chapter should not be considered legal advice. This is for informational purposes only. Use of and access to these materials does not in itself create an attorney–client relationship between David G. Evans and CIVEL and the user or reader. Mr. Evans or CIVEL cannot vouch for any study cited herein since they did not do the study. The readers should consult the study and make their own interpretation as to its accuracy. Please also be advised that case law and statutory and regulatory laws cited herein may have been amended or changed by the time you read this. In addition, each state has laws that differ from other states. What may be true in one state may not be true in another. Federal law may also differ from state law. Please consult an attorney licensed in your state for legal advice.