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Dear Readers:

South Florida Hospital News & Healthcare Report welcomes you to CannabisNewsFlorida.com, a feature of our print
publication, website, and e-newsletters. Its purpose is to provide pertinent educational information from leading authorities

about medical and business developments in the medical cannabis industry. We also intend to provide both national
and international information which will affect the medical cannabis business in the State of Florida.

Florida Physicians: Medical Marijuana Care Requires Effective

“Recommendations” Under Compassionate Use Registry

Until 1942 physicians could write prescriptions for marijuana. • Possible termination from employment for marijuana use;
Today, 75 years later, that same prescription is illegal under both • Possible lack of coverage or denial of claims from Insurance com-
Florida and Federal Law. 1 With the implementation of panies;
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Amendment 2, Florida-licensed physicians are permitted to certify • Locations and delivery capabilities of the seven licensed dispen-
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qualifying patients for medical marijuana use , yet most physicians saries; and
are conservatively cautious for fear of legal repercussions. As evi- • The Compassionate Use Registry is accessible to law enforcement
denced by the latest numbers obtained from the Office of agencies.
Compassionate Use Registry, only 1.5% of Florida physicians are Physicians interested in becoming more involved in the medical mar-
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registered to certify and order medical marijuana for patients. In ijuana space should turn to the literature to better understand cannabi-
other states, some physicians have taken advantage of the lack of noid physiology, the neurochemical effects of marijuana and its phar-
competition; in Oregon, for example, only 24 physicians account- macological interactions. Additionally, they should dedicate themselves
ed for 75% of total medical marijuana patient applications. 4 to learning the effects of the various chemical compounds found in
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Since November 8, physicians have seen an increase in patient marijuana; complete the 8-hour CME course offered by the Florida
curiosity concerning medical marijuana. However, many physi- BY VIJAY S. CHOKSI, ESQ. Medical Association or the Florida Osteopathic Medical Association; 10
cians avoid discussing medical marijuana with patients for fear of cultivate 90-day physician-patient relationships; wait until the “July
losing their DEA licenses or being implicated in aiding, abetting, 3rd” deadline 11 by which the Florida Department of Health is sched-
or conspiring to commit a federal offense. Existing law indicates that it is not as uled to release rules within the parameters of Amendment 2; familiarize themselves
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much of a concern as they believe. In Conant v. Walters, the Ninth Circuit held that with sample templates for patient treatment plans; 12 stay up-to-date with Office of
(i) physicians have a First Amendment right to recommend medical marijuana to Compassionate Use Bi-Weekly updates; 13 look into acquiring medical marijuana
their patients and (ii) physicians who merely discuss the pros and cons of medical malpractice insurance; and update their procedure and patient disclosure forms.
marijuana use cannot have their DEA license revoked. The Ninth Circuit’s decision
is persuasive authority for Florida’s Eleventh Circuit jurisdiction. Moreover, the For questions or more information about the possible legal implications of imple-
Supreme Court has recognized that physicians’ speech is protected under the First menting medical marijuana to your healthcare practice, contact Vijay S. Choksi, Esq.
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Amendment due to the significance of the doctor-patient relationship and is entitled at vchoksi@kklaw.com or (561) 324-8348, Regulated Substances Practice Group
to “the strongest protection our Constitution has to offer.” 8 Attorney at Kelley Kronenberg, P.A.
Because it is not federally legal, however, ordering medical marijuana for patients
on Florida’s Compassionate Use Registry could expose physicians to liability if the (1) 21 U.S.C. §824(a).
(2) Art. X, § 29, Fla. Const. (9) “Physician certification” means a written document signed by a physi-
order appears, instead, to be a prescription. Currently, the Compassionate Use cian, stating that in the physician's professional opinion, the patient suffers from a debilitating medical
Registry allows physicians to enter specific instructions for patients concerning their condition, that the medical use of marijuana would likely outweigh the potential health risks for the
medical marijuana use. The more specific a physicians’ comments and instructions patient, and for how long the physician recommends the medical use of marijuana for the patient. A physi-
are, the more likely their “order” starts to sound like a “prescription,” exposing the cian certification may only be provided after the physician has conducted a physical examination and a
physician to potential liability. full assessment of the medical history of the patient. In order for a physician certification to be issued to
Presently, the Compassionate Use Registry directs physicians creating a patients’ a minor, a parent or legal guardian of the minor must consent in writing.
(3) As of May 12, 2017, there were 804 listed physicians on Florida Department of Health Office of
medical marijuana order to input specific information, such as: (i) route of adminis- Compassionate Use Registry. http://www.floridahealth.gov/programs-and-services/office-of-compassion-
tration; (ii) order notes; (iii) amount of Cannabidiol (CBD) per dose; (iv) number of ate-use/_documents/completed-cme.pdf
doses per day, and; (v) the option to authorize the patient to purchase medical mar- (4)https://public.health.oregon.gov/DiseasesConditions/ChronicDisease/MedicalMarijuanaProgram/D
ijuana delivery devices. This particular information, if inputted by the ordering ocuments/OMMP_Statistic_Snapshot_01-2017.pdf
(5) 71.3% of Floridians voted for Amendment 2 on November 8, 2016. https://results.elections.myflori-
physician, could be construed as the physician possessing the specific intent to aid a da.com/Index.asp?ElectionDate=11/8/2016&DATAMODE=
patient to acquire marijuana, which would constitute a federal offense due to mari- (6) Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
juana’s designation as a Schedule I drug under the Controlled Substances Act. (7) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120
However, based on the significance of the doctor-patient relationship, physicians L.Ed.2d 674 (1992).
should not be fearful of exposing themselves to liability by merely recommending (8) Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995).
(9) Cannabis is a complex plant with over 400 chemical entities of which more than 60 are cannabinoid
and/or discussing medical marijuana with their patients. It is vitally important to compounds. (THC, CBD, CBC, CBG, CBN and THCA-A)
note the subtle, yet distinct difference between a “prescription” for the medical use (10) § 381.986 (4) (a), Fla. Stat.: All physicians must successfully complete the 8-hour CME course
of marijuana which is illegal and carries significant penalties, and a “recommenda- and the subsequent certification examination before ordering low-THC cannabis and medical cannabis.
tion” for the same. By contrast, a “recommendation” that a patient has a certain con- The 8-hour course and examination must be taken once every two years (prior to renewal of the physi-
cian's license to practice medicine).
dition and could benefit from medical marijuana is permissible and will not implicate (11) Art. X, § 29, Fla. Const. : Amendment 2 requires that regulations for the department of health's
legal liability. It is equally important to note that any discussion of medical marijuana medical marijuana program be set for the issuance of identification cards, qualifications and standards of
with patients should include the following points: care givers, and rules for the registration of medical marijuana treatment centers by July 3, 2017, which is
• Effectiveness of marijuana as treatment; six months after the effective date of January 3, 2017.
• Potential risks and side effects of marijuana; (12) https://cca.pharmacy.ufl.edu/
(13)http://www.floridahealth.gov/programs-and-services/office-of-compassionate-
• Current state of marijuana knowledge in the medical community; use/resources/index.html
• Medically acceptable alternatives to marijuana;
• Possible addictive properties of marijuana;
• The risks of smoking marijuana;

10 June 2017 southfloridahospitalnews.com South Florida Hospital News