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State cannabis laws present medical malpractice conundrum

Medical cannabis

NEW YORK — Medical marijuana is legal in more than half of U.S. states, but its illegality at the federal level creates a confusing liability environment for specialty dispensaries and conventional health care providers, a panel of experts said.

Differing laws mean the professionalism of staff in marijuana dispensaries varies significantly by state, making some facilities inherently riskier than others, they said.

And the need to comply with federal and state law complicates how health care providers treat patients who use medical marijuana, they said during a session at the inaugural Business Insurance Cannabis & Hemp Conference held in New York on Friday.

“I not currently aware of any medical malpractice lawsuit (related to cannabis) in the country; it’s still pretty new, but it’s coming,” said Lori Semlies, co-chair of Wilson Elser Moskowitz Edelman & Dicker LLP’s medical malpractice and health care practice in White Plains, New York, who moderated the session.

The dispensing of medical marijuana varies significantly by state, with some states allowing risker environments than others, said Monica Bopha Taing, a clinical cannabis consultant, a board director of Doctors for Cannabis Regulation and a registered pharmacist who worked in a cannabis dispensary in New Jersey, directing its patient counseling program.

“All I could think about every day when I walked into the dispensary was that there’s just so much liability and so much risk” for the practitioners and the patients, she said.

In adjacent New York and some other states, dispensaries are staffed by pharmacists to comply with state law, but under New Jersey regulations patients can interact with so-called budtenders who may only have a high school diploma, Ms. Taing said.

Patients are likely to ask questions about issues such as delivery methods, frequency of use, the dosing ratio of the elements of marijuana — THC and CDB — and drug interactions, she said.

“How can a budtender, without any professional or medical training or certification, speak to the risk of drug interactions or how the body will metabolize everything?” she asked.

Hospitals and other health care providers also face increased risk when patients using medical marijuana enter their facilities, even though the hospitals themselves don’t dispense marijuana, said Doug Shaw, associate general counsel at HealthQuest Systems Inc., a Lagrangeville, New York-based hospital system.

For example, a patient may visit an emergency room and disclose that he or she is prescribed medical marijuana to treat epilepsy and it is the most effective treatment for the condition, he said.

Patients taking marijuana recreationally may be less likely to tell health care professionals when they are admitted to a hospital, “but a patient that is taking medical marijuana is going to tell you,” Mr. Shaw said.

To address the issue, HealthQuest, which must comply with state and federal regulations, developed a policy to deal with the use of medical marijuana on its premises. Among other things, the policy requires that staff cannot handle medical marijuana; it must be administered by the patient or the patient’s designated caregiver; and that the patient keeps it on their person, gives it to their caregiver or is provided with a lockbox in their room.

In addition, the hospital advises physicians to chart the use of medical marijuana, even though they do not administer the drugs, Mr. Shaw said.

“At the end of the day, practitioners are also thinking about ‘What happens if I get sued? What’s the liability?’ Well, you want your medical record to tell the story of your shift, and if you don’t have it in the medical record, you can’t point to it,” he said.

Medical marijuana use is also growing at long-term care facilities, where many elderly residents suffer from chronic pain, Parkinson’s disease and other conditions that medical marijuana is prescribed to treat, said Zachary Palace, a geriatric medicine physician who treats patients at Hebrew Home at Riverdale, a RiverSpring Health Holding Corp. nursing home in New York.

“We figured some patients were using it but that it happened under the radar, so we decided to put it on the radar and create a policy and procedure that would reflect safe, responsible use of medical cannabis,” he said.

The policy requires lockboxes, which only individual patients have the key to, and requires that the drug be self-administered or administered by designated caregivers, Dr. Palace said.

In addition, the nursing home allows a local dispensary to deliver the medical marijuana to the patient, but the transaction must take place in the patient’s room, he said.

The policy has facilitated use of medical marijuana at the nursing home, which has benefited residents, he said.

“We’ve seen incredible results in terms of pain management. Patients are able to simplify their medication regimens and reduce the amount of opioids they take,” Dr. Palace said.


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