Legal Considerations for Doctors Interested in Recommending Medical Cannabis

Traditional doctors in Maryland are finding that an increasing number of patients are asking for their advice on whether medical cannabis is a good treatment for whatever ails them. Some patients are medicating with cannabis without discussing it with their regular physicians at all. Doctors should know the risks involved and proceed with caution, since cannabis is still against federal law.

Tides Are Turning
Patricia Frye, MD, is medical director of Takoma Park Integrative Care. She has been recommending medical cannabis since 2015, evaluating approximately 5,000 patients in California, Washington, DC, Maryland and Virginia. “When I started my practice, the biggest challenge was patient access to medicine,” says Dr. Frye. “Now that this is no longer a problem in Maryland, I think for most providers, the challenge is becoming familiar with the plant and understanding how it works.”

In general, doctors don’t know much about the plant, such as how it works in the body, conditions it treats or how it interacts with other drugs. To be fair, that’s because no one really knows – the research is lacking. For this reason, many doctors don’t feel comfortable recommending cannabis since it is not FDA-approved and there aren’t many definitive studies to prove that it is safe and indicated for various conditions, although that’s changing.

Rather than shrug off questions from patients, the time has come for doctors to invest in learning more about medical cannabis so they can safely inform and educate their patients.

Dr. Frye encourages providers to start talking to their existing patients about their cannabis use in order to find out how they use it and how it helps them. “They should not be afraid to recommend cannabis when they think it might help,” she advises. According to Dr. Frye, cannabis has an extremely high safety profile. “It’s important for them to learn about the endocannabinoid system, a neuromodulation system that interacts with almost every other neurotransmitter system in the body.” After they understand how important the system is in maintaining homeostasis, a stable and constant environment inside the body, they will better understand how and why cannabis is able to treat such a vast array of medical conditions, says Dr. Frye. “They need to learn about the cannabis plant and its components, how these components may interact with other medications, and the possible adverse effects of cannabis.” 

Dr. Frye recommends the Society of Cannabis Clinicians as a resource. She notes that major universities, including the University of Maryland School of Pharmacy, are beginning to offer cannabis courses and programs, and that it’s only a matter of time before medical schools around the country follow suit.  

Know the Law of the Land
Maryland law allows doctors to recommend medical cannabis to patients, according to Gene Ransom III, the current CEO of MedChi, The Maryland State Medical Society. “Technically it is federally illegal. Doctors are taking a risk and they need to understand what that means,” says Ransom. For physicians who are interested in legally recommending cannabis to their patients, guidelines are available on both the MMCC website and MedChi website. Here’s the jist of it:

  • Doctors must have a bona fide relationship with the patient for whom they are recommending medical cannabis. Bona fide relationship means the physician has an in-person visit for their first meeting where the physician reviews and maintains medical records, notes for follow-up, etc. Doctors should be treating their medical cannabis patients like real patients. If they aren’t doing this, they may be accused of not having a bona fide relationship, and may have problems down the road with MedChi and the MMCC.
  • Doctors must make a finding in order to make a recommendation that the patient’s condition was severe, other treatments haven’t been effective, and you have reason to believe that medical cannabis may help. The current qualifiers are “a chronic or debilitating disease or medical condition that causes: cachexia, anorexia, wasting syndrome, severe or chronic pain, severe nausea, seizures, severe or persistent muscle spasms, glaucoma, post-traumatic stress disorder (PTSD), or another chronic medical condition that is severe and for which other treatments have been ineffective.”
  • Doctors must register with the MMCC to be a legal recommender in Maryland. Patients wanting to take medical cannabis must also register with the MMCC in order to legally obtain cannabis.

A Medical Cannabis Patient Is Still a Patient
There might be a temptation for some to think about recommending cannabis as different. It’s important for providers to know that it is still the practice of medicine, and the same amount of attention is owed these patients. “If you have a patient with chest pain and you recommend medical cannabis and they have a heart attack the next week, you could be liable,” says Ransom. “Think about the risk you’re taking and be comfortable with it. If you don’t feel comfortable being a recommender, you could partner with a practitioner who is a recommender and work it that way.” When it comes to dispensaries and growers, Ransom recommends treating them like you would pharmaceutical companies and keeping an arm’s length by not accepting gifts or other incentives.

Many doctors fear that they may lose their license or be reported to the DEA if they recommend cannabis. “As long as they are practicing with the same care that they would exercise recommending any other treatment, there is no need to fear the medical board or the DEA,” says Dr. Frye. “The federal government cannot interfere when the state’s regulations are being followed. Healthcare providers have a First Amendment right to talk to their patients about using cannabis to treat medical conditions. This has been upheld in the courts.”

One of the good things about the way that Maryland has its medical cannabis program structured is the provider making the recommendation never actually touches the product. They are recommenders, not prescribers. It’s a big difference from a legal standpoint.

Rather than shrug off questions from patients, the time has come for doctors to invest in learning more about medical cannabis so they can safely inform and educate their patients.

MedChi suggests that physicians form a separate LLC that would separate their medical cannabis from their medical practice. A year ago, former US Attorney General Jeff Sessions was pushing for cannabis to be completely illegal. At that time, physicians were setting up medical cannabis recommending as a separate service in order to mitigate the risk.

Managing Risks
If a physician wants to become a cannabis provider in Maryland, it probably won’t impact her medical professional liability insurance in Maryland. Medical Mutual Liability Insurance Society of Maryland insures an estimated 70 to 80 percent of practices in Maryland. It is owned by the physicians and offers good pricing in Maryland. “Physicians have coverage under their policy at no additional charge,” says Ron Kendall, sales executive with MedChi Insurance Agency. “We ask them to let us know if they are going into medical cannabis, but it’s not required by law. They can do it and there is no extra charge at all with Medical Mutual.”

Other insurers may carry an additional charge for those physicians recommending medical cannabis, though. Physicians who have insurance through non-admitted carriers could be charged higher rates. Some of the other state and national admitted carriers won’t insure physicians recommending medical cannabis because of the federal illegality. “Others will gladly insure them but they will charge more in most situations,” says Kendall.  

Doctors wanting additional guidance on everything from how to set up medical records, dealing with dispensaries, billing, insurance and legal matters should contact MedChi or the MMCC for resources and education. 

Cannabis Is Here to Stay
Dr. Frye says that physicians can expect that cannabis will be either re- or descheduled within the next two to three years, and that more patients will be asking about it. “We have had FDA-approved synthetic THC since 1986 for treating anorexia, nausea and vomiting, and now plant-derived CBD for seizures. The U.S. Department of Health and Human Services has had a patent on cannabinoids as neuroprotectants and antioxidants since 2004. The feds cannot continue to say that the plant has no medical value.

The public is moving ahead with cannabis, sometimes getting ahead of the science. We as clinicians need to have the knowledge to advise our patients on how to use it to achieve the maximum benefits and avoid adverse effects.”

Kelly Swan is a writer, communicator and storyteller in the Baltimore area.