Between Stoned and a Hard Place? Navigating Cannabis Medicolegal Issues

CATEGORY 1 CME

Premiere Date: October 20, 2020

Expiration Date: April 20, 2022

This activity offers CE credits for:

1. Physicians (CME)

2. Other

All other clinicians either will receive a CME Attendance Certificate or may choose any of the types of CE credit being offered.

ACTIVITY GOAL

The goal of this activity is to explore the medicolegal aspects of medical marijuana.

LEARNING OBJECTIVES

After engaging with the content of this CME activity, you should be better prepared to:

• Understand the basic concepts of medical marijuana including its history and legislation.

• Review possible indications and potential side effects of medical marijuana with patients.

• Discuss the social barriers associated with medical marijuana use.

• Understand the potential areas of liability physicians may encounter surrounding medical marijuana.

TARGET AUDIENCE

This continuing medical education (CME) activity is intended for psychiatrists, psychologists, primary care physicians, physician assistants, nurse practitioners, and other health care professionals who seek to improve their care for patients with mental health disorders.

ACCREDITATION/CREDIT DESIGNATION/FINANCIAL SUPPORT

This activity has been planned and implemented in accordance with the accreditation requirements and policies of the Accreditation Council for Continuing Medical Education (ACCME) through the joint providership Physicians’ Education Resource®, LLC and Psychiatric Times. Physicians’ Education Resource®, LLC is accredited by the ACCME to provide continuing medical education for physicians

Physicians’ Education Resource®, LLC designates this enduring material for a maximum of 1.5 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

This activity is funded entirely by Physicians’ Education Resource®, LLC. No commercial support was received.

OFF-LABEL DISCLOSURE/DISCLAIMER

This CME activity may or may not discuss investigational, unapproved, or off-label use of drugs. Participants are advised to consult prescribing information for any products discussed. The information provided in this CME activity is for continuing medical education purposes only and is not meant to substitute for the independent clinical judgment of a physician relative to diagnostic or treatment options for a specific patient’s medical condition.

The opinions expressed in the content are solely those of the individual faculty members and do not reflect those of Physicians’ Education Resource®, LLC.

FACULTY, STAFF, AND PLANNERS’ DISCLOSURES

The authors, James L Knoll IV, MD, (external peer reviewer), and the staff members of Physicians’ Education Resource®, LLC and Psychiatric Times have no relevant financial relationships with commercial interests.

For content-related questions email us at PTEditor@mmhgroup.com; for questions concerning the accreditation of this CME activity or how to claim credit, please contact info@gotoper.com and include Between Stoned and a Hard Place? Navigating Cannabis Medicolegal Issues in the subject line.

HOW TO CLAIM CREDIT

Once you have read the article, please use the following URL to evaluate and request credit https://education.gotoper.com/activity/ptcme20october. If you do not already have an account with PER® you will be prompted to create one. You must have an account to evaluate and request credit for this activity.

Dr Hicks is a PGY-2 psychiatry resident at Case Western Reserve University/University Hospitals in Cleveland, OH. Dr Lapchenko is medical director at Elwyn Natale in Norristown, PA. Dr Saxton is an assistant professor of psychiatry at Case Western Reserve University. Dr West is an associate professor of psychiatry at Case Western Reserve University.

"Julia” is a 31-year-old female with depression and posttraumatic stress disorder (PTSD) who presents to your outpatient psychiatry clinic. She is married with 2 children and works as a store manager. Julia has been taking a selective serotonin reuptake inhibitor for the last 2 years, which alleviated her depressive symptoms. However, Julia continues to experience PTSD symptoms including nightmares, flashbacks, and avoidant behavior. She has tried various augmenting agents with little relief; she currently engages in therapy.

A friend of Julia’s recently told her that medical marijuana has been a panacea and has made it much easier to function. Intrigued, Julia researched cannabis online and found it might be beneficial for her PTSD symptoms. Julia smoked marijuana occasionally during her early 20s and found it to have a relaxing effect. She has not used marijuana since becoming pregnant with her first child about 8 years ago. She has many questions about medical cannabis including its risks, benefits, and how to obtain it, and she is looking to you for advice.

History of medical cannabis

The concept of cannabis as medicine has existed for millenia,¹ but its legal recognition has only begun to gain traction with western medical practitioners in the last 2 decades. California became the first state to legalize medical cannabis in 1996 with the passage of Proposition 215-Compassionate Use Act, and many states have followed suit.² As of May 2020, all but 3 states (Idaho, South Dakota, and Nebraska) have enacted legislation regarding the use of either medical cannabis or cannabis-derived (ie, cannabidiol-containing) products (Figure).³ This trend mirrors the worldwide trend of increasing acceptance of medical cannabis. Mexico, Australia, and much of Western Europe and South America have legalized medical cannabis.⁴

Figure. Legality of Cannabis in the United States

The term cannabis refers to a genus of flowering plants belonging to the family cannabaceae. Two common species—sativa and indica as well as their hybrids—are consumed in the United States for medical and recreational purposes. A third rarer species, ruderalis, is endemic to Asia and Eastern Europe. The cannabis plant contains approximately 500 known chemical compounds. Sixty-six of these compounds are cannabinoids that are unique to cannabis; cannabinoids tetrahydrocannabinol (THC) and cannabidiol (CBD) are responsible for its psychoactive and purported medicinal properties, respectively. The remainder of the chemicals, such as nitrogenous compounds, amino acids, and terpenes, can be found in other plants and account for cannabis’ non-psychoactive properties including its color, flavor, and odor.⁵

Although there are 3 main species of the cannabis plant, nearly 800 cultivars or strains are believed to exist.⁶ Cultivars are often described in terms of their cannabinoid content and specifically their CBD-to-THC ratios, as these account for their advertised medicinal properties. High CBD-to-THC strains are believed to have anti-inflammatory and calming properties; they are thought to be effective for the treatment of autoimmune, mood, and anxiety disorders. In contrast, high THC-to-CBD strains are advertised as being helpful for pain and nausea.⁷ (These statements have not been evaluated by the US Food and Drug Administration. The FDA has not approved a marketing application for cannabis due to its federally illegal status and classification as a Schedule I drug.)

Legislation

Laws governing cannabis cultivation and use have not always been so favorable. While cannabis was a popular ingredient in medicinal compounds touted as a cure for a variety of conditions (eg, gonorrhea and “childbirth psychosis” in the late 19th and early 20th centuries), laws limiting and prohibiting its use were enacted as early as the 1920s. By 1931, 29 states passed legislation explicitly barring possession of cannabis. In the decades that followed, there were harsher penalties for possession, including mandatory minimum sentences for charges of possession of cannabis.

In 1971, the Controlled Substances Act (CSA) created the Drug Enforcement Agency’s drug schedules that still exists today. The CSA placed cannabis in the Schedule I category of drugs along with heroin, LSD, ecstasy, and psilocybin, all of which are believed to have no current medical use, high abuse potential, and lack of accepted safety data for use under medical supervision.⁸ The CSA dealt perhaps the hardest blow to cannabis’ potential use as a therapeutic agent by prohibiting the use of federal funds for any research into its efficacy and safety.

Cannabis legislation remained at a standstill for 25 years after the CSA until the passage of Proposition 215 in California, which allowed patients with a valid doctor’s recommendation to possess and cultivate cannabis for personal use. In direct response to the proposition’s passage, the federal government also issued a policy in 1996 indicating that a physician’s recommendation or prescription of Schedule I substances was not in line with the public interest and threatened to revoke the prescribing privileges of those physicians who did not comply with the policy.⁹ The 1996 federal policy led to a landmark legal case Conant v Walters (United States Court of Appeals for the Ninth Circuit, 2002). The class action lawsuit was filed by patients with seriously medical illness and their doctors against John P. Walters, director of the White House Office of National Drug Control Policy and others. The court ultimately ruled that the existing federal policy violated a physician’s first amendment right to free speech by threatening censure for discussions held in the sanctity of the doctor-patient relationship; it further found physicians may discuss the pros and cons of medical marijuana with their patients and issue oral or written opinions recommending its use. However, the court explicitly stated that physicians may not prescribe or dispense marijuana or “aid and abet” the patient in the purchase, cultivation, or possession of marijuana. This landmark decision was the first to outline a physician’s right to recommend, but not prescribe, cannabis and provided a basis for legal protection from sanctions against their license.¹⁰

In 2014, Congress passed the Rohrabacher-Farr amendment as part of Commerce, Justice, Science, and Related Agencies Appropriations Act. This amendment, initially introduced in 2001, prohibits the use of federal funds to interfere with the implementation of state medical cannabis laws. The Rohrabacher-Farr amendment is considered a significant victory for proponents and consumers of medical cannabis because it allows state medical cannabis dispensaries to operate without fear of prosecution by the federal government, which still considers cannabis to be illegal due to its classification as a Schedule I drug.¹¹

Legislation to reclassify cannabis from a Schedule I to a Schedule III drug and decriminalize it at a federal level was introduced in the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act of 2019. The Act was passed by the House Judiciary Committee, but Congress has not yet voted on it.^12,13 If passed, the MORE Act would be another significant victory because scientists could apply for federal funds to formally research the potential medical benefits of cannabis.

Table 1. Areas of State-by-State Variation in Medical Cannabis Laws

Presently, as there is no federal legislation legitimizing its use, medical cannabis laws have been crafted at the discretion of individual states.¹⁴ As a result, there is significant variation from state to state (Table 1). Given the significant variation in medical cannabis laws amongst states and the continually shifting legal landscape regarding its use, medical cannabis presents a unique challenge for medical professionals who consider recommending it to their patients or who treat patients who receive it from other professionals. It is important that clinicians familiarize themselves with state laws to ensure compliance since deviation can have serious consequences for their licensure.

Indications

Marijuana has long been a part of popular culture. When smoked, vaped, or ingested, THC can produce sought-after effects such as euphoria, heightened senses, a distorted sense of time, alterations in physical movements, and decreased inhibitions. With 38 states allowing for the use of THC-containing medical marijuana compounds (Figure), it stands to reason that it may be effective for treating physical and mental ailments. By far, the most common psychiatric diagnosis listed by these states is PTSD, but others include Tourette syndrome, Alzheimer, and autism. As psychiatrists, we may be approached to diagnose some of these conditions in our patients as part of their interest in obtaining medical marijuana.

Adverse effects

It is important to consider what can go wrong when using THC. Common short-term side effects include conjunctival injection (often a tell-tale sign of intoxication), hyperphagia (or, in common parlance, “the munchies”), xerostomia “cottonmouth,” dyspnea, tachycardia, and slowed motor response leading to delayed reaction time (which is particularly concerning while driving or operating heavy machinery). One of the most common psychiatric side effects is paranoia; this may be worth noting when discussing marijuana with patients who have a history of paranoid beliefs.

There are also long-term issues that have been associated with THC. These may include cannabinoid hyperemesis syndrome/cyclic vomiting syndrome and amotivational syndrome.¹⁶ There are potential consequences in pregnant woman, including a negative impact on fetal brain development and decreased birth weight.¹⁷ Finally, some argue that marijuana serves as a gateway drug, placing users in circumstances where they find themselves compelled to use more dangerous drugs with a higher potential for addiction.

Doctors may also be called upon to answer questions about CBD. As it is readily available in multiple forms (eg, gummies, oils, pills) at numerous locations (eg, pharmacies, health food stores, gas stations), one may conclude that it is relatively benign. The FDA, however, warns that CBD may cause somnolence, gastrointestinal distress, irritability, and/or agitation.¹⁸ Regarding its efficacy as a treatment option for serious mental illness, the results appear inconclusive.^19,20

There is much discussion regarding the relationship between marijuana and psychosis, as there is some overlap between cannabis intoxication and primary psychotic disorders. For those experiencing a psychotic episode with concomitant marijuana use, the etiology of the symptoms becomes complex. If a patient who uses marijuana is later diagnosed with schizophrenia, the marijuana can further complicate the picture. For instance, in their resistance to accept the schizophrenia diagnosis, the patient and family may prefer to attribute the psychotic symptoms to marijuana. Unfortunately, this may lead to delays in receiving the appropriate antipsychotic treatment.

According to a 2016 meta-analysis, increased exposure to THC increases the odds of being diagnosed with schizophrenia.²¹ Additionally, THC use is associated with poor medication response, medication noncompliance, and higher frequency and temporary worsening of psychotic symptoms.^22,23 This information should be tempered when discussing marijuana use with patients; while a clinician may share concerns about marijuana use with their patients, an absolute intolerance could potentially damage the therapeutic alliance.

Employment

After reviewing Julia’s medical history and discussing the potential side effects of medical marijuana, Julia begins to share concerns over the use of medical marijuana for her PTSD. She asks about anticipated employer problems, but she is unaware of her workplace’s policies. Julia further questions how it may affect other facets of her life.

Employment restrictions are delineated at the state level with varying degrees of stringency. The exception is federal employees who are prohibited from using both medical and recreational marijuana. The medical cannabis laws of Nevada and Washington will be used for illustrative purposes due to their contrasting laws. However, each state has slight nuances that need to be reviewed before discussing medical marijuana with patients.

The pre-employment job process may involve a drug screen and/or a questionnaire inquiring about marijuana (medical or recreational) use. The employer, according to their own policies, must choose how to handle a positive drug screen. Some may recognize medical marijuana as a legitimate treatment and disregard a positive test. Others may have a zero-tolerance drug policy.

A zero-tolerance policy was unsuccessfully challenged by a Washington state employer in Roe v Teletech (Washington Supreme Court, 2011). The Washington Supreme Court upheld a ruling that an employer does not have to accommodate an employee’s use of medical marijuana, even when the employee is in a non-safety-sensitive position and uses medical marijuana exclusively off-site.²⁴ In contrast, Nevada recognized the quandary of allowing medical marijuana while simultaneously permitting employers to discriminate against its use. Thus, Assembly Bill 132 was passed, making Nevada the first state to prohibit employers from discriminating against applicants for a positive marijuana test.²⁵ It should be noted that some jobs are exempt from the Nevada bill.

Once employed, on-duty use of medical marijuana is almost universally prohibited. However, some states (eg, Massachusetts and Nevada) may require employers to reasonably accommodate an employee’s medical needs for off-duty/off-sight use.^26,27 This could entail allowing the employee to work shifts that do not interfere with medical marijuana use. Since on-duty use and related impairment are prohibited, employers may implement policies to determine impairment in a variety of different ways. For example, suspected impairment may be confirmed with a drug screen or via observation of behavioral changes. However, for chronic medical marijuana users, a drug screen is likely to be a poor indicator of impairment, as the non-psychoactive components of marijuana can stay in the body for weeks.²⁸ The state of Arkansas recognized this issue and ruled that an employer cannot use a drug test as the sole indicator of impairment.²⁹ Other states have allowed the employer autonomy over the methodology of determining impairment. Regarding off-duty use, restrictions are again variable. Some states force employers to recognize medical marijuana status, while others do not.³⁰

Driving

Similar to employment, states have struggled with issues regarding people who use medical marijuana and drive due to the difficulty of identifying suspected impairment and corroborating it with objective measures that will hold up in court. Currently, there are 4 main testing methods: urine, blood, saliva, and breathalyzer. While urine and blood are the most commonly employed testing methods, they are also the poorest measures of impairment. Depending on the amount, frequency, and mode of marijuana use, THC may be metabolized by the liver within hours of ingestion.²⁸ However, the nonpsychoactive metabolites can remain in the system for weeks. A problem with generic urine and drug tests is that they do not evaluate for psychoactive versus nonpsychoactive metabolites. Rather, they only test for the presence of cannabinoids, which may be present for hours to weeks depending on the chemical compound. Thus, someone could ingest medical marijuana, have multiple days go by where they are no longer actively intoxicated, but still test positive on a drug or urine test. This is currently the case in Pennsylvania where a person using medical marijuana can be automatically issued a driving under intoxication notice after a crash if they fail a drug test.³¹

Some states have recognized this conundrum and sought alternative testing methods. The breathalyzer is a method being explored.³² A saliva test, which is currently being used in Europe, Alabama, and Oklahoma, is also being investigated as an option. However, the issue remains that neither test can determine impairment as there is no universal standard. Arizona and Michigan have remedied this issue by ruling that a positive blood or urine test alone is not sufficient evidence to prove intoxication.³¹ Therefore, the burden of proof is on the police officer alleging that a driver was intoxicated.

Gun ownership

Under the Gun Control Act of 1968, any unlawful user of a controlled substance is prohibited from purchasing or owning a gun.³³ The key words at issue are “controlled substance.” Since marijuana is classified as a Schedule I controlled substance, it is illegal for anyone who uses medical marijuana to purchase a gun.³⁴ Gun shops screen for marijuana use with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives form 4473, which serves as a document to determine eligibility and record transactions.³⁵

Travel

Depending on the patient, travel may be another barrier to treatment and complication. Crossing state lines with medical marijuana is a precarious venture and could lead to harsh legal consequences. Some states offer reciprocity laws that recognize out-of-state medical marijuana documents, while others do not. If traveling by plane, Transportation Security Authors officers reserve the right to report individuals who are carrying marijuana (regardless of medical status) to local, state, or federal authorities.³⁶ In addition, airlines have their own policies that may restrict cannabis onboard.³⁷

Education

Finally, due to the difference between state and federal laws, schools are left to make their own decisions regarding medical marijuana use. Most schools receive state and federal funding, leaving them with the difficult task of trying to balance obeying laws that allow them to procure funding and accommodating their students’ needs. In Oklahoma, medical marijuana is legal. However, the University of Oklahoma ruled marijuana is prohibited on campus, regardless of medical status.³⁸ This has forced students who use medical marijuana to live off-campus and find alternative times of use.

Finances

In addition to the various social constraints, price may be the ultimate decider of consumption. Medical marijuana tends to cost more than marijuana procured for recreational use.³⁹ Price is dependent on location, supply and demand, method of consumption, and THC content. The cost of an ounce of medical cannabis in Colorado is well over $200 plus taxes compared to approximately $150 for medical grade street cannabis.^40,41 This could lead individuals to pursue other methods for obtaining cannabis.

Areas of risk for physicians

At the conclusion of your appointment with Julia, she decides that it may not be the most opportune time to pursue medical marijuana, due largely to workplace concerns. She schedules a follow-up appointment to discuss this again at a later time. After the meeting, you converse with colleagues about the potential liability associated with medical marijuana from a physician perspective.

Some physicians argue that the lack of data about the efficacy of marijuana for treating various conditions stems from the severe research limitations that have lasted decades in the United States. They would like to provide their patients with a potentially helpful treatment recommendation, but they may be concerned about the possible risks. In general, medicolegal risks associated with the practice of medicine can be divided into 3 broad categories: malpractice, disciplinary action by state medical boards and, rarely, criminal charges.

Malpractice

Although there are no known cases in which a physician was sued for malpractice related to their recommendation of medical marijuana treatment, the potential exists. Consider a patient who presents seeking a marijuana card for chronic pain of 6 months duration. If the physician recommends marijuana as a treatment, but fails to review past records, examine the patient, or consider diagnostic studies to work up the pain complaint, there is potential for a missed serious diagnosis underlying the pain (eg, malignancy). An expert could argue that the physician deviated from the standard of care by failing to gather sufficient information and by failing to perform necessary diagnostic workup or referral, which resulted in delayed diagnosis and proper treatment. Another example, perhaps more relevant to psychiatry, involves a physician who misses a diagnosis of schizophrenia in a patient (either due to failure to review records, gather relevant history, or conduct a mental status examination) and recommends medical marijuana to treat PTSD. Later, the treatment results in an exacerbation of psychosis that leads to violence toward self or others. In both examples, a medical malpractice case would likely hinge on whether the doctor breached the standard of care.

It is important to keep in mind that although medical marijuana is a legal treatment in a number of states, legal is not synonymous with meeting the standard of care. The legalization of medical cannabis prohibits criminal prosecution of the physician for recommending medical marijuana provided the physician complies with the state-specific regulations regarding recommending medical cannabis. Conversely, “standard of care” provides a benchmark with which to measure the conduct of the physician in assessing for negligence in their medical management. It is possible for a physician to prescribe a medication that is not against the law but goes against what an ordinary or reasonably prudent physician would prescribe in such circumstances (eg, haloperidol as first line treatment for childhood attention-deficit/hyperactivity disorder). Courts may seek guidance from expert testimony, treatment guidelines, journal articles, facility policies, and position statements by professional organizations to establish the standard of care in a given scenario. Many professional medical and psychiatric associations do not presently recommend medical marijuana due to insufficient data, concern about negative effects, and lack of regulation. This could bolster the plaintiff’s argument that a physician’s recommendation of medical marijuana did not meet the standard of care.

Medical board discipline

In contrast to malpractice liability related to medical marijuana, which is mostly hypothetical at this point, there are several documented cases of medical board discipline against physicians recommending medical marijuana. According to the Federation of State Medical Boards (FSMB), 4081 physicians across the United States were disciplined by state medical boards in 2017.⁴² This represents less than 1% of physicians with active licenses (985,026), according to a 2018 census conducted by the FSMB.⁴³ To our knowledge, no analysis has been published regarding disciplinary actions by state medical boards related specifically to medical marijuana.

There are, however, several examples from news articles and case law. In 2016, for example, 4 doctors in Colorado had their licenses suspended for recommending excessive marijuana plant counts.⁴⁴ At that time, the standard plant count was 6 per patient, yet these doctors approved 75 or more plants for many patients. In 2017, a Michigan physician faced medical board discipline for certifying medical marijuana without conducting a physical examination.⁴⁵ After appealing the medical board determination, the Michigan Court of Appeals upheld his discipline, citing statements by American Society of Addiction Medicine and Federation of State Medical Boards that recommend examining the patient prior to certifying medical marijuana. In 2019, a naturopath had his license suspended after recommending marijuana cookies as a treatment for ADHD and bipolar disorder in a 4-year-old boy.⁴⁶ In 2019, a physician in New Jersey lost his license for indiscriminately prescribing medical cannabis to patients at hotel conferences that he hosted. The doctor was accused of failing to establish bona fide physician-patient relationships, gather comprehensive histories and examine patients, assess patients’ qualifying conditions every 3 months, and keep accurate and complete records.⁴⁷

Criminal charges

In addition to state medical board discipline, doctors have rarely faced criminal charges related to medical cannabis certificates. In 2013, a Michigan doctor was convicted of health care fraud for selling signed medical marijuana certificates to a middleman for resale.⁴⁸ In 2016, the Arizona Supreme Court reviewed a case in which a physician was indicted on forgery and fraudulent schemes related to allegedly lying about reviewing a patient’s medical records when he certified her for medical marijuana.⁴⁹

Table 2. How To Reduce Risk in a Medical Marijuana Practice[50]

Although medical board discipline and criminal charges related to marijuana certifications are likely rare, these situations can have serious and long-lasting implications for a physician’s career. Losing one’s medical license involves a loss of one’s livelihood, source of income, and reputation. Should a physician decide to establish a medical marijuana practice, we recommend considering a number of steps to reduce risk (Table 2).⁵⁰

Concluding thoughts

The use of marijuana, recreational or medical, has long been part of society. There was hemp use in the 1600s, “Reefer Madness” in the early 1930s, the “peace and love” movement of 1960s, and today it seems to be the catch-all treatment for various medical disorders. Throughout it all, the cultural impact of marijuana is undeniable. It is with this ever-evolving relationship that states have increasingly changed legislation to reflect the latest societal attitudes, which currently consist of increasing openness toward the use of marijuana for medical purposes. With estimates of more than 4 million people using medical marijuana across the United States, there is a strong likelihood that medical professionals will face questions regarding its efficacy and indications for various medical conditions.⁵¹ However, research is sparse, making the risk-to-benefit ratio a challenging calculation with many missing variables.

As we enter an era of likely increasing research in medicinal marijuana, it will be important for physicians to stay up to date on the current literature so that we can best advise our patients. Aside from the clinical aspects of medical marijuana, there are also a myriad of social constraints that need to be considered. In addition, due to the infancy of medical marijuana, there are several opportunities for liability on the part of physicians.

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