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| Newsletter July, 2007 |
MedicalBoardWatch Newsletter July 2007
BLESSED ARE THE CAREGIVERS:
NOTE: I am not an attorney, but I am a physician who has been practicing Family and General Practice since 1979, making safe and appropriate medical cannabis recommendations since 1996. In addition to my experience as an expert witness for medical cannabis patients, and cannabis-recommending physicians, I am an experienced medical-legal consultant/expert witness in malpractice cases, reviewing records for the plaintiff. The following is my opinion, based on my knowledge of good medicine, and cannabis law, and my observations and inquiries.
OPEN LETTER TO PATIENT GROUPS/DISPENSARIES/COLLECTIVES:
Blessed Are the Caregivers
I have BAD news, and I have GOOD news:
First, the bad news: I can never refer patients to you.
But the good news is: I can never refer patients to anyone else.
And this will be true of any ethical and legally responsible physician.
As tempting as it is for doctors and dispensaries to cross-refer to increase one’s business, this is illegal, and unethical, and I believe that the vast majority of dispensaries and physicians agree with this.
In my next MBW Newsletter, tentatively titled “TheVictory of Raich”
I make the following case:
1: Physicians are the only one’s involved with medical cannabis recommendations, who are protected by Federal law, (AS LONG AS THEY DO NOT AID AND ABET A PATIENT IN OBTAINING CANNABIS). See Conant v Walters
http://www.medboardwatch.com/conant-vs-walters-text-version.htm
2: Individual patients are the next “most protected” (relative protection)
and
3: Dispensaries and growers are the “least protected” federally (most at risk).
In this issue of my MedBoardWatch.com Newsletter, and in the next, I make the case that the MOST ETHICAL dispensaries may have the least to fear from the feds, and that the MOST ETHICAL physicians will have the least to fear from the feds, or from the Medical Board of California, and that legitimate patients should avoid the others.
BLESSED ARE THE CAREGIVERS for the risk they take to help suffering patients.
Growers and Dispensaries will always serve an important function.
It is clear that ethical growers and dispensaries do a great public health service and are necessary links to safe access for most sick patients, who are unable to grow their own medicine.
It would be ideal for patients to grow their own medicine: They would know the source of the medicine and be assured that it is additive-free.
But patients who are sick should not be forced to grow their own medicine, and most patients cannot grow their own. It is not easy, and most do not have the knowledge, ability or resources to set up a home growroom.
So it is obvious that the California Compassionate Use Act of 1996 (CCUA or “Prop 215”), and California’s SB420, meant for patients to be able to have Caregivers to help grow their needed medicine.
But in an effort to increase their business, some dispensaries (small minority) have attempted to have physicians on site to make recommendations. Having gotten the word that this practice is a “DEA magnet”, this is now rarely the case, BUT EVEN OFF-SITE COLLUSION IS ILLEGAL.
Physicians can’t even collude with CONVENTIONAL pharmacies to cross refer to increase their respective businesses. It is illegal and unethical.
Therefore, it should be obvious that dispensaries and physicians who collude in cross-referring, are illegal, both federally and under State law, and should be avoided.
In the early days after the passage of the CCUA, there was a clear shortage of physicians willing to make recommendations to sick patients, so it was not surprising that some of the pioneers would go across the state to do medical cannabis clinics so patients didn’t have to go halfway across the state to find a knowledgeable physician.
This is rarely necessary these days.
In 2007, California NORML lists over 50 physicians throughout the state who are experienced in medical cannabis.
http://www.canorml.org/prop/215physicians.html
(Beware: this list also includes some of whom I call the low standards “fig leaf” clinics. See:
http://www.medboardwatch.com/wb/pages/physician-survey.php )
As I was contacting physicians to update my physician survey on medical cannabis practice standards, many physicians had questions about what contact a physician MAY have with dispensaries, so I thought I would outline some of my thoughts on this issue.
Here’s my understanding (and I encourage feedback on this):
Physicians can't refer patients to dispensaries or direct patients to them at all:
First and foremost, because they would lose the federal protection of Conant, and immediately become DEA targets, along with those they collude with (which the DEA would love!)
Otherwise, the rules are pretty much like with conventional pharmacies:
Prescribing physicians can’t work in pharmacies, and physicians and pharmacies cannot use each other to increase their respective businesses. Not only is it illegal, but it’s a sleazy business practice. I compare it to steroids in baseball.
I suspect that a dispensary CAN refer to a physician for a number of legal reasons:
e.g.: good protective standards, cheapest, easiest, sleaziest, or whatever criteria, as long as they are being honest with the patient about the reason.
They CAN’T do it for these illegal and/or unethical reasons:
--They can’t do it for cross-referrals (“you send me business and I’ll send you business”), or for money or kickbacks, directly or indirectly.
--They can't use physicians in advertising or to attract business.
I also have serious concerns about “physician referral services”, especially if they are connected with dispensaries (yes, even if they are in a different location, and pretending that they are not connected!).
And especially if they are selectively “STEERING PATIENTS” preferentially to certain physicians, either for money or other valuable consideration.
I and other physicians have been contacted by several such “physician referral services”.
One concerned and knowledgeable physician sent me the following section for the California Health and Safety Code:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=00001-01000&file=445
CALIFORNIA HEALTH AND SAFETY CODE SECTION 445
445. No person, firm, partnership, association or corporation, or
agent or employee thereof, shall for profit refer or recommend a
person to a physician, hospital, health-related facility, or
dispensary for any form of medical care or treatment of any ailment
or physical condition. The imposition of a fee or charge for any
such referral or recommendation creates a presumption that the
referral or recommendation is for profit.
The provisions of this section shall not apply to referrals or
recommendations which are made under the crippled children services
program or prepaid health plans.
A physician, hospital, health-related facility or dispensary shall
not enter into a contract or other form of agreement to accept for
medical care or treatment any person referred or recommended for such
care or treatment by a medical referral service business located in
or doing business in another state if the medical referral service
business would be prohibited under this part if the business were
located in or doing business in this state.
A violation of the provisions of this section shall constitute a
misdemeanor and upon conviction thereof may be punished by
imprisonment in the county jail for not longer than one year, or a
fine of not more than five thousand dollars ($5,000), or by both such
fine and imprisonment.
Any violation of this section may be enjoined in a civil action
brought in the name of the people of the State of California by the
Attorney General, except that the plaintiff shall not be required to
allege facts necessary to show or tending to show lack of adequate
remedy at law or to show or tending to show irreparable damage or
loss.
2007 Physician Practice Standards Survey in progress.
As I mentioned in my last MedBoardWatch email newsletter, this year I am expanding my survey of cannabis physicians practice standards which I initiated in 2005.
See: http://www.medboardwatch.com/survey.htm
In 2005, I found that the vast majority of medical cannabis clinicians listed on CaNORML.org had good standards, and practiced good protective medicine.
I suspect that that will be the case in 2007 with twice as many physicians listed this year.
I also suspect that the majority of patient groups, dispensaries, collectives, etc., also have good ethical standards, and are embarrassed and harmed by the few who do not.
I would recommend using only those physicians willing to be INDIVIDUALLY listed on CaNORML.org.
I am more and more convinced that individual physicians with good standards will have the least trouble with the Medical Board of California, and that their patients, and their patients’ caregivers, will have the least problems with law enforcement.
I suspect this will also be true for the dispensaries to a great extent, and would recommend that patients and caregivers avoid physicians and/or dispensaries with unethical business practices.
There is a vast majority of ethical ones to associate with, and thus reduce your risks, both medically, and medical-legally.
Please this on to any other patient advocates who wish to be kept informed.
As always, I am soliciting reports of physicians and dispensaries with unethical practices, as well as reports of law enforcement non-compliance with State or local law.
Next MedBoardWatch Newsletter
The “Victory” of Raich
Coming soon…
(Prior MBW newsletters posted at: http://www.medboardwatch.com/wb/pages/newsletters.php)
peace and health,
Frank Lucido M.D.
www.DrLucido.com
www.MedicalBoardWatch.com
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