Healthcare providers across the U.S. are continually confronted with new challenges as they work to provide consistent, high-quality patient care. One of the most confounding emerging risks is medical marijuana, a subject that Zurich North America included in our 2019 Benchmark Study of Healthcare Professional Liability Claims.
Consider this scenario: John suffers from chronic, debilitating pain that traditional medicine has failed to address. He has found relief using medical marijuana. When he is admitted to a healthcare facility, John brings his medical marijuana to self-administer. How should the facility respond? Should they allow him to self-administer his medical marijuana off-premises? Send him home with a caregiver? Store the cannabis until discharge? Or prohibit its use and confiscate it as contraband?
This example is far from unique. With approximately 3 million medical marijuana users currently enrolled in state registries, according to the Marijuana Policy Project, healthcare facilities across the U.S. are being challenged to navigate this complicated, emerging risk.
Marijuana, derived from the cannabis plant, contains tetrahydrocannabinol (THC), a psychoactive compound that delivers the sensation of euphoria. Medical marijuana, or medical cannabis, uses the plant and/or chemicals within it to treat patients.
As of September 2019, 33 states and the District of Columbia have legalized medical marijuana. (Eleven states and the District of Columbia have legalized recreational marijuana.) The driving force behind legalization of medical marijuana appears to have been public opinion through state ballot initiatives and referenda, with laws that vary widely from state to state. All states that have legalized marijuana for recreational use also have whole-plant medical marijuana laws. Some states have more stringent laws, which permit only the use of low-THC cannabidiol (CBD) oil and are not considered to have adopted broad medical marijuana laws.
However, the U.S. Drug Enforcement Administration (DEA) classifies marijuana as a Schedule 1 drug under the Controlled Substances Act, complicating the situation for healthcare providers. A Schedule 1 drug (the list also includes heroin and LSD) is deemed to have a high potential for abuse and no currently accepted medical use. Despite organized efforts to change federal law to legalize marijuana, reschedule its classification and decriminalize it for medical purposes, as a Schedule 1 drug medical cannabis remains illegal for doctors to prescribe, dispense or possess for any purpose.
Physicians and, depending on the state, physician assistants and certain nurse practitioners can only write a recommendation, which is different from a prescription. The physician may “recommend”or“certify” patients to obtain medical marijuana if they meet certain qualifying medical conditions, depending on applicable state law.
Furthermore, some states require physicians to be registered with the regulatory agency, while other states allow any physician to recommend medical marijuana.
Meanwhile, consumer demand for medical cannabis continues to grow, primarily to relieve chronic pain and other symptoms associated with chronic conditions such as cancer and epilepsy. Chronic pain accounts for over 67% of qualifying medical conditions reported by patients who use medical marijuana, notes a 2019 government report. Legalized marijuana products have also become hugely profitable. Marijuana Business Daily recently reported estimated sales revenues of .8 billion in 2018 alone.
Marijuana legislation continues to stir emotional debates among the public, politicians, researchers, scientists and the medical community. Healthcare-related concerns include: Is it safe? Why can’t a physician prescribe it? Who qualifies for a registry card and for what conditions? Is it addictive? Has its effectiveness been proven? Why is it illegal at the federal level but legal in so many states? Should healthcare facilities allow patients to have it on the premises? Should facilities allow their physicians to recommend it? Does recommending it violate the standard of care?
An alternative path to approval
An even larger question looms for the healthcare industry: Is marijuana good medicine? Its medicinal approval appears to have been based on testimonials, legislative initiatives, public reports and/or low-quality scientific evidence, which departs from the traditional approach required for Food and Drug Administration (FDA) approval. The lack of evidence for its medicinal use and questions about its overall effectiveness underscore the need for the research, safety studies and well-controlled clinical trials that typically support an FDA-approved medication. However, its Schedule 1 classification strictly limits the type, amount, availability and funding of such research.
Subsequently, concerns remain about its toxicity, pharmacology, form, delivery method, dosage and, especially, its potency, which has slowly climbed over the past two decades and is introducing new challenges, according to a recent report from CBS News. Fortunately, the DEA recently announced an initiative to facilitate and expand scientific and medical research for marijuana in the U.S.
There also is considerable variability in the profile of different forms of medical marijuana (i.e., smoking versus consuming edibles), which may affect the body differently. This, too, is obscured by a lack of research and a subsequent lack of standards for labeling and testing.
For example, a product may not be regulated or inspected for its chemical contents and purity, and the labeling may not tell the patient much about the product or how to use it. This presents a potential threat to patient safety by putting them at risk for adverse drug reactions, dose stacking, mixing with other intoxicants and even potential overdose. Medical complications may include gastrointestinal symptoms, psychosis, cardiovascular symptoms and cannabinoid hyperemesis syndrome, which is highly dangerous because it’s difficult to diagnose and treat.
Healthcare organization leaders and physicians are concerned by the lack of medical standards and whether medical marijuana is the best treatment modality; the lack of dosage control; and how to protect patients from interactions with other medications. They’re also challenged with how to balance the patient’s experience while managing a physician’s right to refuse to recommend due to the stigma associated with being labeled a “pot doctor” or a resource for individuals seeking recreational marijuana.
Proceed with caution
Despite increased public demand for legalization and decriminalization of medical cannabis, many healthcare facilities ban it on their premises in states that have legalized it. Other facilities employ “don’t ask, don’t tell” policies, allowing patients to send it home with a caregiver or use it off hospital premises, which could create the potential risk of losing a hospital license and/or Centers for Medicare and Medicaid Services (CMS) funding.
Recommending patients for medical marijuana use poses a unique challenge for the medical community. Healthcare facilities are facing decisions about whether to allow its physicians to recommend. There is fear of potential liability, notwithstanding the Conant v. Walters decision, in which the U.S. Court of Appeals for the Ninth Circuit addressed the right of physicians to recommend medical marijuana, as well as First Amendment protections for professional-client speech.
Because laws vary widely from state to state, it’s critical for healthcare facilities to understand the laws governing each state, determine their position on this issue and develop appropriate policies and procedures. The Federation of State Medical Boards has developed guidelines to help state medical boards regarding the recommendation of marijuana for patient care. These guidelines note that an established patient relationship, a good faith medical exam, informed consent, and an evaluation of addiction potential are at the crux of safe, quality recommendations for patients seeking medical marijuana.
The exposure to significant malpractice liability when recommending medical marijuana is unknown and untested. However, given that more than half the states allow for some medical use, that will likely change. To better manage their risks, physicians and organizational leaders should understand their role and responsibilities under each state’s laws and any rules or guidelines stipulated by their state medical board. Risk managers may wish to encourage their organizations to develop policies and procedures regarding marijuana for medical use, where applicable. This is a great opportunity for risk managers to provide thought leadership and support their organizations in developing a position on this issue.
Healthcare facilities must continue to balance patient comfort, public opinion and stigma with federal prohibition. The challenge is to educate and engage all stakeholders while supporting safe and effective patient care.