Many States have made medical marijuana (cannabis) legal in one form or another and for one purpose or another. Some have allowed it to be relatively unrestricted in a medical sense or “recreational” and others such as our home State of Illinois have tightly restricted it use and growth for expressly listed medical conditions of ill being. The Federal Government still considers it to be an illegal controlled substance.

There are many legal problems that remain when there is a discrepancy between Federal Law and State Law and between the laws of different States.

There are also a whole bunch of issue with medical marijuana laws within a State itself because this whole new area of law has to be reconciled with the established medical practice act as well as with other laws relating to operating a motor vehicle or heavy machinery and so on.

It appears that the courts are going to be busy sorting out each and every issue that’s going to come up, with limited higher decisions to go by, thus making brand new case law on almost every case. The purpose of this post is not to take any side on any issue related to Cannabis but rather to provide a basic update as to how this legal issue effects the field of medicine or potentially medical malpractice.

One of the issues which might be looked at is the concept of judicial jurisdiction. In short, what happens if a patient who has been prescribed cannabis by a physician in Illinois suffers some sort of harm from it? Or what happens if such a patient gets high on the substance and crashes into another car causing death and or great bodily harm? Will the physician be liable in any of this? Will this type of situation convey Federal Jurisdiction on medical malpractice cases when such jurisdiction never previously existed absent diversity?

For example, if a physician is sued in State Court for something akin to the above he is protected by all of the Rules of evidence and procedure. In short, it will, as always, be the patient’s burden to prove two things to a reasonable degree of medical certainty by a preponderance of the evidence; that the physician deviated from the applicable standard of care and in so doing caused a harm. But in Federal Court it may be the case that given that prescribing medical marijuana is illegal under Federal Law then there would be no need for a plaintiff suing a doctor to prove that there was any deviation from the applicable standard of care other than simply showing that the doctor prescribed marijuana. In short, this simple fact will be proven in a matter of seconds. The general rule is that no reasonable physician practicing medicine within the applicable standard of care would break the law. Breaking the law is per se unreasonable and is a criminal act. Since the standard to convict for a crime is much higher than to convict for medical malpractice (negligence) then proof of the fact that the doctor prescribed the marijuana would be all that is required to win the case. Arguably no trial would even be necessary on the issue of liability but only on the issue of damages. This would be a Draconian result for the medical profession especially if insurance carriers then decline to cover the use of marijuana in any way, shape or form.

There are also many places where the standard Medical Practice Act (“MPA”) says one thing and the Marijuana Act says something different. Imagine the problems this is going to cause not only for the medical profession but for the courts. As alluded to above there currently exists a huge body of case law with respect to medical malpractice issues and the Medical Practice Act. There is no case law for the medical use of marijuana however.

One issue which currently stands out to Medwitness, Ltd. is the fact that the Hippocratic Oath and the Medical Practice Act hold that a doctor should first do no harm and that a doctor shall treat disease and alleviate pain. Under the “MPA” any properly licensed doctor can prescribe pain medications for any patient suffering from pain. In fact, many doctors actually specialize in pain medicine and actually become quite skilled in using such medications in pain clinics. After all they are dangerous and is it not good to have practitioners who have a lot of experience doing this?

But a quick peek at the Marijuana Act in Illinois tells us that there can be no dedicated marijuana clinics akin to pain clinics for Opioids. Under the marijuana act only the doctor who is actually treating the patient’s pain causing condition, cancer, arthritis or whatever) can prescribe marijuana for that pain. The idea was, in an effort to help get the law passed, was to prevent creating improper pain “mills” such as the pill mills for Opioids. That means that the marijuana act forces Oncologists, when we’re looking at cancer pain, to have to prescribe marijuana to patients if they need it for pain. This forces them to engage in a practice they may not want to practice and forces them to engage in a practice where they do not have the same skills and training as a doctor who specializes only in it. It forces the patient to pay much more money and go through a much harder process to see an Oncologist at a major medical center (often time hundreds of miles from their home if they do not happen to live in an urban area) to get inferior care from a doctor who doesn’t want them and may actually decide not to do this. This also forces the medical malpractice insurance industry to make coverage decisions which are not in their best interest either financially or legally.

It is also the case that Cancer doctors are always associated with a hospital and that the hospital may not allow its doctors to prescribe marijuana either because it violates their religion (Catholic Hospitals) or they do not wish to violate Federal Law themselves. This will result in further problems for the patient(s).

I really have no idea where things are going or how they’re going to end up but it does seem certain that Illinois is looking ahead to one hell of a litigious period over the next 10-20 years straightening all of this out unless the State amends the new Act on the above and other concepts which are producing a real conflict for doctors. One could honestly ask how a doctor can abide by the “MPA” and alleviate pain when he/she is forbidden from giving marijuana if that is the best drug for the patient under the circumstances and the patient is a member of that doctors general practice but who’s cancer was treated by someone else who doesn’t want to or is unable to prescribe the marijuana.