• Potential Criminal Repercussions Under Medical Marijuana Laws for Physicians
  • January 3, 2018 | Author: Adam R. Dolan
  • Law Firm: Goldberg Segalla LLP - White Plains Office
  • Many states have their own medical marijuana laws that define who can use medical marijuana, what qualifying conditions are necessary, and what licenses are required to distribute the drug. In Arizona, the Arizona Medical Marijuana Act (AMMA, A.R.S. §36-2801) immunizes physicians from prosecution for providing written certifications that a patient is likely to receive therapeutic or palliative benefits from the medical use of marijuana to treat or alleviate a patient’s debilitating medical condition. The physician is required to specify the debilitating medical condition and sign and date the certification after completing a full assessment of the patient’s medical history. As the case below makes clear, strictly complying with statutory language is paramount to avoiding both criminal prosecution and potential professional ramifications.

    In State v. Gear, 239 Ariz. 343 (2016), a physician was indicted for forgery and other charges for falsely stating he had reviewed a confidential informant’s medical records in certifying the informant for access to medical marijuana. The trial court dismissed the indictment on statutory immunity grounds, and the appellate court upheld the dismissal. However, the Arizona State Supreme Court reversed and held that the physician was not immune from prosecution under the AMMA. The Supreme Court held that while the AMMA immunizes physicians from prosecution or penalties based solely on their providing the statutorily authorized certifications that a patient is likely to benefit from marijuana, it did not immunize other conduct, such as making a false statement in a written certification. The term “solely” was the key aspect of the court’s analysis.

    Under the law, a physician is required to perform a “full assessment of the qualifying patient’s medical history,” including reviewing the patient’s “medical records from other treating physicians from the previous 12 months.” Ariz. Admin. Code R9–17–202(F)(5)(i)(i). The regulation also requires the physician to attest to the truth and accuracy of the information set forth in the written certification. Id. at R9–17–202(F)(5)(m). In this case, while the physician did meet with the patient in question prior to certifying them, he never reviewing the medical records from the preceding twelve months, despite indicating that he had done so. He also attested that “the information provided in the written certification is true and correct.”

    The court stated that in interpreting § 36–2811(C) of the AMMA, the court of appeals did not consider the qualifier “solely,” but instead noted that the statute grants immunity for “providing written certification or for otherwise stating that, in the physician’s professional opinion, a patient is likely to receive” benefit from medical marijuana. Gear, 236 Ariz. at 292, 339 P.3d at 1037 (quoting A.R.S. § 36–2811(C)). This language immunizes two different, though related, types of actions: “providing written certification” and “otherwise stating” the physician’s medical judgment. By applying the term “solely,” the immunity is limited to those two actions and excludes from immunity any act that goes beyond those actions, even if it is related to them. Here the prosecution was not directed toward immunized conduct but was instead based on the physician falsely attesting that he inspected medical records. Ultimately, the Supreme Court held that the physician “went beyond the immunized range of conduct” and was therefore subject to criminal prosecution — not for his professional medical opinions, which were protected, but for his false misrepresentation of fact.

    What this decision and other decisions reveal is that a physician will not be prosecuted simply for prescribing medical marijuana. Nor will they likely face any professional sanctions, such as a license suspension…as long as they comply with the mandates of their state’s regulations. Should an a doctor be charged with a crime or face some licensure sanction, it is important to carefully review not only the malpractice policy in place, but also the conduct alleged to be violation of an existing law or code. States have narrowly construed immunity from prosecution based on language — see , for example, People v. Mentch, 45 Cal.4th 274, 85 Cal.Rptr.3d 480, 195 P.3d 1061 (2008); City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494 (2013) (rejecting the argument that medical marijuana laws preempt local ban on dispensaries); Kirby v. Cty. of Fresno, 242 Cal.App.4th 940, 195 Cal.Rptr.3d 815 (2015) (concluding that the medical marijuana laws did not preempt city’s ability to regulate the cultivation of marijuana) — and arguments raised in defense of criminal charges can be potentially be raised in defense of any professional sanctions. Carefully review the allegations to see whether a doctor’s conduct violates governing rules and/or regulations, as the issues will undoubtedly continue to arise as more states pass medical marijuana laws