Questions and Answers for Physicians on Medical Marijuana

In November 2018 the People of Missouri adopted Constitutional Amendment 2, enacting a new constitutional chapter permitting medical marijuana use, and authorizing growing marijuana, manufacturing of marijuana products and the dispensing of marijuana. The best estimate from the industry is that dispensaries will be open and selling products in the summer of 2020.

There are many issues facing the medical community. This article addresses some common questions. Both Chapter XIV of the Constitution and the Department of Health and Senior Services rules (health.mo.gov/safety/medical-marijuana/rules.php) should be consulted for more detail.

Did Amendment 2 adopt a constitutional right that affects physicians?

Yes, article XIV, Section 1 defines a new right for “patients with qualifying medical conditions . . . to discuss freely with their physicians the possible benefits of medical marijuana use” and a new right for physicians “to provide professional advice concerning the same.” Finally, patients have a new right “to use medical marijuana for treatment under the supervision of a physician.”

Since the patient has the constitutional right to use medical marijuana, can the patient make a physician authorize medical marijuana use?

No. The patient right does not carry with it any ability of the patient to compel physician conduct.

Can a physician sell marijuana from his/her office?

Only a licensed dispensary can sell marijuana or marijuana products.

Does Amendment 2 include a waiver of physician liability?

Yes, article XIV, Section 1 says that the intent is to protect physicians from civil and criminal penalties. Having said that, caution is warranted because it is unclear how courts will interpret that language in the context of professional licensing, malpractice, and other cases. It is no secret that Missouri courts have been creative in permitting lawsuits where there is any ambiguity in an applicable statute or constitutional provision.

What is the primary role of the physician under Amendment 2?

Physicians can issue a “physician certificate” stating that, in the physician’s professional opinion, the patient suffers from a qualifying medical condition.

What is a qualifying medical condition?

Cancer; epilepsy; glaucoma, migraines unresponsive to other treatment; a chronic medical condition that causes severe, persistent pain or spasms; debilitating psychiatric disorders, if diagnosed by a state-licensed physician; human immunodeficiency or acquired immune deficiency syndrome; terminal illness; “a chronic medical condition that is normally treated with a prescription medication that could lead to physical or psychological dependence, when a physician determines that medical marijuana could be effective in treating that condition and would serve as a safer alternative to the prescription medication;” “any other chronic, debilitating or other medical condition.”

If a patient informs the physician that he/she is going to use medical marijuana instead of a prescribed medication, can the physician discharge the patient without liability?

The physician can explain his/her concerns to the patient and, if the patient refuses to accept the physician’s advice, the physician should document that and then explain to the patient that because of the physician’s concerns, he/she can no longer provide care to them and arrange to transition them to another appropriate caregiver.

If a patient has a qualifying medical condition, can a physician be forced to issue a certification?

No. This remains within the professional judgment of the physician.

Does a physician who issued a certification have a risk of liability for adverse effects from marijuana use by the certified patient?

Maybe. Amendment 2 purports to limit liability, but it remains to be seen how courts will interpret it.

Are there special concerns about certifying patients who work in industries that prohibit use?

The physician’s certification is limited to the existence of a qualifying condition, and not the suitability of use. Having said that, the physician is never required to certify, so he/she can refuse to certify for whatever reason he/she takes into account.

Can minors obtain a physician certification?

Only a parent or guardian who holds a primary caregiver card issued by the Department of Health and Senior Services can obtain medical marijuana for a minor, unless the minor is legally emancipated.