Hospitals, Medical Marijuana and Procurement: A Few Obvious Questions

In a recent conversation I had with a long-time consultant to hospitals (specialized in matters of compliance), I listened to a story about a recent run-in between a former professional athlete and staff at a Florida hospital. Apparently, during his admission interview, the player confirmed his use of state-approved marijuana to treat his chronic pain. In turn, the attending staff insisted that he turn it over. Not to bore you with the details, but when this hulk of a man refused, the hospital threatened to have its security forcibly take his medication. Suffice it to say that this particular patient was not motivated to comply. In fact, he belligerently welcomed the hospital’s next move.

Although medical marijuana is now legal in 31 states, and its effectiveness in treating pain, numerous seizure disorders, nausea and other ailments is scarcely questioned anymore, the substance is still illegal at the federal level, where Medicare/Medicaid reimbursement is adjudicated. So, yes, failure to comply with federal law means hospitals run a risk they cannot afford.

Using the State of Florida as the example, nearly 75% of voters overwhelmingly made their preference clear. There are 135,000 Floridians already “state approved” for marijuana use, and the numbers are increasing at a clip of more than 1,000 each week.

Briefly, the approval process goes like this: Physicians attend a state-provided education seminar on medical marijuana use. After they’re certified, they are authorized to evaluate their patient-candidates and make recommendations. If they believe the patient will benefit, they can make a recommendation that allows the patient to apply to the state for medical marijuana use. If all goes well, the patient is then issued a card, and not unlike a driver’s license, that patient can use it to purchase marijuana at any number of state-licensed dispensaries.

The problem is, when patients using medical marijuana go to a hospital, all bets are off. Not only for them, but for a hospital that frankly has no option other than to confiscate their marijuana (or try to do so), assuming they know about it in the first place. Keep in mind, the patient is legally authorized by the state to use medical marijuana, so the inconsistency here is loaded with potential legal problems. Despite all of this, when the talk of medical marijuana comes up, most all of the hospital officials I have spoken with readily admit that they haven’t even given the subject much thought.

Although there aren’t many, I found a law firm that specializes in helping hospitals document and institute medical marijuana policies and procedures. Yes, their practice is growing. In a conversation with Elizabeth Hodge and Jonathan Robbins of Akerman LLP, Ms. Hodge stated that “while we don’t want to give our hospital clients a new headache, the list of matters they haven’t considered is nothing short of stunning. Bottom line, when discussing with clients the myriad potential liabilities associated with medical marijuana, it’s not hard to get their attention.”

For example:

• Will hospital procurement departments competitively source their demand for medical marijuana or will it be left up to patients? How does a bedridden patient obtain medical marijuana when he/she runs out? What about hospitals that operate across state lines? What are the supply chain management ramifications?
• If hospitals are finally able to write medical marijuana-use “prescriptions,” will the underlying requirements mirror existing narcotics regulations? How will the supply chain be managed? Who is qualified to develop such documentation?
• Whether a hospital adopts a more “enlightened” or laissez faire approach isn’t the point. If hospitals simply look the other way when patients use marijuana, it presents a perfect opportunity for disgruntled staff and other patients — anyone who doesn’t support medical marijuana use — to report the matter to authorities.
• What about a patient who suffers a seizure during a hospital stay (i.e., a patient who was otherwise being effectively treated by medical marijuana)? Does the hospital have a legal liability on its hands? For all the right reasons, malpractice lawyers will have a field day with this. Go ahead and extend the same problem to chemotherapy patients who benefit from medical marijuana use or, for that matter, any chronic pain sufferer who is prescribed an opiate (as replacement therapy) and then becomes addicted.
• From a more general liability perspective, are the malpractice insurance companies accounting for such risk in their current premiums? Are such issues even covered?
• Are hospital BOD members and officers aware that they can be named in such lawsuits? Are they aware of their personal liability?

Many of us have sat through a sexual harassment seminar. As we know, human resources departments were obliged to reteach and then certify us on how to treat each other in the workplace. Similarly, global corporations force staff who travel overseas to understand their corporate responsibilities and potential personal liabilities relative to foreign corrupt business practices. It would seem logical, therefore, that an obligatory medical marijuana policies and procedures program is next up, presenting a great opportunity for professional services firms to provide clarity.

While researching this piece, my surprise was not about the abundance of unanswered questions. Rather, my surprise was based on the fact that no one seems to be asking them.