Authored By: William F. McDevitt, Esq.
Pennsylvania’s Medical Marijuana Act (MMA) requires the active participation of the medical community. Doctors certify if patients might benefit from cannabis to relieve one or more of 17 medical conditions. Without doctors, it’s not “medical” marijuana.
The MMA is structured to give physicians some protection from legal liability. Certifying doctors are not required to “prescribe” cannabis, only to certify that the patient is receiving care for an MMA-recognized condition and may receive a benefit from marijuana. A doctor can “suggest” quantity or form (pill, oil, liquid, etc.), but this “suggestion” is not binding on the dispensary. Section 2103(a) of the MMA insulates certifying physicians, physicians’ assistants and nurses from sanctions proceedings before Pennsylvania’s licensing boards and commissions arising from activities that are allowed under the MMA.
What the MMA does not do for certifying physicians:
● Section 2102 of the MMA specifically states that health care insurers are not required to provide coverage for medical marijuana. Doctors who provide medical marijuana certifications cannot rely on a patient’s medical insurance to receive payment for their time.
● The MMA does not contain provisions relating to a physician’s professional liability coverage. Most professional liability policies contain exclusions for prescription of Schedule I substances (such as cannabis) or violations of federal law.
● The MMA criminalizes the intentional, knowing or reckless certification of patients to receive medical marijuana, but does not expressly define the minimum evaluation or assessment standards.
In addition, certifying physicians face the possibility of federal prosecution or review of their prescription privileges issued by the Drug Enforcement Administration (DEA). Some federal prosecutors have stated publicly that they do not intend to file charges arising from state-legal cannabis activities, but these statements are not an absolute guarantee.
Where does this leave doctors in Pennsylvania? Based on the experience in other states, physicians who participate in Pennsylvania’s medical marijuana program might start by obtaining secondary insurance tailored specifically to their certification activities.
Physicians participating in Pennsylvania’s medical-only cannabis program may have an easier time obtaining additional coverage compared with doctors in recreational-cannabis states. But, secondary or supplemental policies have drawbacks. Supplemental insurance represents an additional cost that may be significant over time. Physicians must consider whether the volume of their medical marijuana practice (consisting of both certification and “continuing care”) and the collectability of that revenue (primarily consisting of out-of-pocket payments) will justify the expense. In addition, some of the most troubling liabilities are not insurable, even with supplemental coverage. It is unlikely that coverage will be extended to a landlord’s termination of a lease based on fears of renting to a “marijuana-related” business. Similarly, supplemental policies probably will not include coverage for any (hopefully unlikely) action by federal authorities directed toward a physician’s DEA prescription license.
The Commonwealth is committed to providing patients with access to medical marijuana, which access cannot occur without physicians. While certifying physicians can feel confident that they will continue to receive some protections, they must be mindful of and consider planning for potential liabilities.
About the Author
William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached at firstname.lastname@example.org.