Our Section 8 Defense And Court Drama...

[GregS]

A physician can also just take the fifth and walk away.

Which I understand is pretty common. Am I mistaken?

[Dr. Bob]

Yeah, it is a legal thing.  Is the case about the certification and am I a party to the charge?  Or is the case about what someone DID with the certification and I am brought in to clarify things and offer an expert opinion on their medical condition, treatment, prognosis, and my OPINION on dosages and needs?.  

 

Given your attitude that certification doctors are not experts or can set their own fees, little wonder there is trouble getting docs into court.  But there is the rule, and there is the reason they are experts.  I am, in fact, an expert and the courts agree.  I'll let folks make up their own minds.

 

If NOT qualified by the court (hey I guess that could happen), my testimony as a witness of fact would be that 1/ I met with the patient 2/ I reviewed the documents in his chart 3/ I signed the certification 4/ I offered follow up.  

 

Now Zap, which doctor do you want helping your clients do you want an expert willing to offer an opinion, or a witness of fact confirming they signed the form but offering NO opinion on need, dosage, treatment, or physiology/medical benefit?  You want a witness of fact, it is mileage.  If you want an expert, that cost money.  Up to you.

 

Dr. Bob

[Dr. Bob]

A physician can also just take the fifth and walk away.

 

Yep.  I think that happened to one of your cases, didn't it Zap?  Bob and Torey perhaps....

 

Might want to rethink the value and use of a good expert withness in certification, internal medicine, pharmacology and toxicology (all previously certified by the court by the way).

 

Dr. Bob

Edited August 15, 2014 by Dr. Bob

[Dr. Bob]

BTW, your minimizing of certification doctors as experts does not reflect well on medical marijuana.  That is what prosecutors try and do.

[GregS]

A doctor cannot refuse to disclose copies of office memoranda to a patient. Those records are theirs, and can be submitted as evidence. The Michigan Rules of Evidence require they be allowed. 

 

Yeah, it is a legal thing.  Is the case about the certification and am I a party to the charge?  Or is the case about what someone DID with the certification and I am brought in to clarify things and offer an expert opinion on their medical condition, treatment, prognosis, and my OPINION on dosages and needs?.  

 

Given your attitude that certification doctors are not experts or can set their own fees, little wonder there is trouble getting docs into court.  But there is the rule, and there is the reason they are experts.  I am, in fact, an expert and the courts agree.  I'll let folks make up their own minds.

 

If NOT qualified by the court (hey I guess that could happen), my testimony as a witness of fact would be that 1/ I met with the patient 2/ I reviewed the documents in his chart 3/ I signed the certification 4/ I offered follow up.  

 

Now Zap, which doctor do you want helping your clients do you want an expert willing to offer an opinion, or a witness of fact confirming they signed the form but offering NO opinion on need, dosage, treatment, or physiology/medical benefit?  You want a witness of fact, it is mileage.  If you want an expert, that cost money.  Up to you.

 

Dr. Bob

Those facts are required by law to be kept readily current and available. There is no other requirement than those clearly stated in the Act.

Edited August 15, 2014 by GregS

[Restorium2]

This process really needs to be streamlined. We need a template.

[GregS]

It's no small wonder that you continually agree with the courts to limit our protections. Doing that renders every courtroom a profit center for you. 

Edited August 15, 2014 by GregS

[GregS]

This process really needs to be streamlined. We need a template.

Templates like a physician attestation of compliance that is duly signed and notarized?

Edited August 15, 2014 by GregS

[GregS]

Something like this?
 

Physician’s Assessment, Diagnosis, and Opinion

_____________________, being the undersigned affiant, and being first duly sworn, hereby deposes and says:

1) I am the physician for the below referenced patient, licensed as a such under Part 170 or Part 175 of the public health code

1978 PA 368.

2) I am fully familiar with the facts stated in this affidavit and the attached medical record and, if sworn as a witness, am

competent to testify to them.

3) That I am the custodian and the preparer of the patient’s original medical record, a true and exact copy of which is attached

hereto. As such I declare the attached copy to be authentic in all respects.

4) That said record is a memorandum of the patient’s medical condition, based on observations and medical examination by me in

my professional capacity as patient’s physician, and from information transmitted by the patient, having knowledge of the

facts, and my professional opinions and diagnosis, as then discussed with the patient, after I completed a full assessment of the

patient’s medical history and current medical condition;

5) Statements made during the examination were for purposes of patient’s medical treatment and medical diagnosis, in

connection with treatment, and described medical history, symptoms, pain, sensations, and general character, cause, or

external source thereof, and were necessary to such diagnosis and treatment.

6) That said record was prepared by me, on the date of said examination.

7) The the record accurately reflects that I then stated to patient that in my professional opinion, after having completed a full

assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient

relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or

alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical

condition.

8) That the record was made and kept in the course of a regularly conducted medical examination, conducted as part of my regular

professional practice.

9) That it is and was my regular practice in the course of my professional practice, for matters such as those discussed in the

attached memorandum, to make and keep a record, memorandum, and report regarding medical examinations, my

assessments, findings, opinions, statements, and diagnosis, and to prepare a specific form, like the one attached, under

circumstances where statements are made regarding the efficacy of marijuana for medicinal purposes, for verification purposes.

Dated: __________________________

/s/______________________________

Affiant

STATE OF MICHIGAN}

___________ COUNTY}

Signed and sworn to before me on this _______ day of __________________ , _______, by the above affiant.

___________________________________________

Print Notary:

Notary public, State of Michigan, County of ____________________ Acting in the County of :

My commission expires:

[GregS]

...along with something like this?

 

MEMORANDUM OF ASSESSMENT, DIAGNOSIS, AND OPINION

This memorandum is not a certificate in support of an application for Registry ID Card though the MDCH, is not intended to be used as such, and does not have the

legal effect of a Registry ID Card. This is not a prescription or recommendation, but a statement in support of just one element of the Medical Purpose affirmative

defense under the Michigan Medical Marijuana Act.

Name of Patient: ___________________________________ Date of Birth: ______________

Dear Patient,

You have requested medical treatment and advice from me, as your physician. I have therefore made a medical examination of you

today, and have made a complete assessment of your medical history and your current medical condition. I cannot legally prescribe

non‐pharmaceutical marijuana for your medical use, and the law does not contemplate that I should make a recommendation in this

regard, and but I have formed a professional opinion as to whether you are likely to receive therapeutic or palliative

benefit from the medical use of marihuana to treat or alleviate your serious or debilitating medical condition or its symptoms and

this letter is a verification to the statement I have made to you in this respect. During the examination we each made statements

that were made for purposes of your medical treatment and diagnosis, in connection with treatment, and you described your

medical history, symptoms, pain, sensations, and general character, cause, or external source thereof, all of which were necessary to

your diagnosis and treatment. During the examination I made observations and a medical examination, in my professional capacity

as your physician, and from that examination and from information transmitted by you, based on your personal knowledge of your

health conditions, I have made a complete assessment of your current medical condition. I have your medical history in my file and I

have made a complete assessment of it. It is my regular practice, in the course of my professional services to you and others, to

make and keep a record, like this memorandum, regarding regularly conducted medical examinations, to state my assessments,

findings, opinions, statements, and, if requested, my diagnosis of your medical condition, made in the course of the examination,

and to prepare a specific form, like this one, where medically significant statements are made which may require later specific

verification under circumstances where you may wish to establish that I have made this statement to you, and still keep the details

of your medical condition private, as it is Protected Health Information. This record made and kept in the course of a regularly

conducted medical examination, conducted as part of my regular professional practice, will be kept in your confidential medical file

and only you have a right to have authorize access to this record on request. Below is a checklist specifying my professional opinion

and findings as stated to you (I have checked only those items that

apply):

 I am a physician, duly licensed in the State of Michigan.

 I completed a full assessment of your medical history.

 I completed a full assessment of your current medical condition.

 This assessment was made in the course of a bona fide physician‐patient relationship.

 I have formed a professional opinion.

 As your physician, I stated on this date that in my professional opinion, after having completed a full assessment of your

medical history and current medical condition, made in the course of a bona fide physician‐patient relationship, YOU ARE

LIKELY to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the your serious

or debilitating medical condition or symptoms of the your serious or debilitating medical condition.

Diagnosis. Since the law does not specifically require disclosure of your medical condition (your specific diagnosis is your legally

protected health information private, according to HIPAA), it is not listed here.

Date of Certification: _______________________ Expiration of Certification: ___________________

Physician Signature: _____________________________________ Date: ___________

Name of Certifying Physician:

State of Michigan Physician License #:

Physician Address:

Phone: Fax:

Physician Information: Only a Physician may make this statement. "Physician" means an individual licensed as a physician under Part 170 of the public health code,

1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556. You can

check my license status at (517) 241‐9427 or online at www.dleg.state.mi.us/free/

Elements of the Affirmative Defense:

1. The Physician’s Statement [section 8(a)1]:

• A physician (Licensed MD or Osteopath)

• has stated that

• in the physician's professional opinion

• after having completed a full assessment of

• the patient's medical history and

• patient's current medical condition

• which assessment was made in the course of a bona fide physician‐patient relationship

• that the patient is likely to receive therapeutic or palliative benefit

• from the medical use of marihuana

• to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

2. The Reasonably Necessary Quantity [section 8(a)2]:

• The patient and the patient's primary caregiver, if any, were collectively

• in possession of a quantity of marihuana that was

• not more than was reasonably necessary

• to ensure the uninterrupted availability of marihuana

• for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

3. The Medical Purpose [section 8(a)3]:

• The patient and the patient's primary caregiver, if any,

• were engaged in the

• acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or

paraphernalia relating to the use of marihuana

• to treat or alleviate the patient's to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating

medical condition.

Disqualifications: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging in the use of marijuana was in violation of

Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that apply to the Section 8 affirmative defense and to the Act’s other more prophylactic

immunities for registry participants.

The defense may not be asserted for any of the following:

• Smoking marijuana “in any public place”;

• Smoking marijuana on any form of public transportation;

• Any use by a person who has no serious or debilitating medical condition;

• Any conduct where being under the influence would constitute negligence or professional malpractice per se;

• Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under

the influence of marihuana.

• Any use or possession in a school bus;

• Any use or possession on the grounds of any preschool, primary, or secondary school;

• Any use or possession in any correctional facility;

Patient Acknowledgement:

I have read and understood the essential elements of the Medical Purpose Affirmative Defense, and understand that this defense,

while a defense in court which may be the basis for dismissal of any prosecution involving marijuana, the affirmative defense, and

this statement, will not prevent law enforcement agents from arresting me or charging me with any offense in the same way the

Registry ID Program purports to do. I understand that the provisions of the affirmative defense are subject to judicial scrutiny, and

have yet to be clearly defined by courts. I understand that I must consult with an attorney regarding the legal protections afforded

to me under the affirmative defense. I further understand that this memorandum is not a certificate in support of an application for

Registry ID Card though the MDCH, is not intended to be used as such, and does not have the legal effect of a Registry ID Card. I

understand that this is not a prescription or recommendation to use marijuana, but a statement in support of just one element of

the Medical Purpose affirmative defense under the Michigan Medical Marijuana Act. I understand that my physician will not assist

me in actually using or obtaining marijuana, and I acknowledge that my physician has not provided me with any information as to

how, where, and from whom I might obtain marijuana.

Signature of Patient: ___________________________________ Date: ______________

[GregS]

...and along with something like this?
 

Patient/Caregiver Agreement to Engage in the Medical Use of Marijuana

 

I,______________________________________, swear and affirm that I am a patient under the Michigan Medical Marijuana Act, Initiated Law 1 of 2008.

__Dr._____________________________, a physician authorized under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556, physician license I.D. number____________________ , has stated that in the physician's professional opinion, on or about (date)___________________________, and after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, that I am likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate a debilitating medical condition or symptoms associated with the debilitating medical condition (copy attached) .

Or:

__A registry card duly issued by the State of Michigan Department of Licensing and Regulatory Affairs (LARA) , number______________________(copy attached), has been issued to me which attests to a physician's recommendation that in the physician's professional opinion, and after having completed a full assessment of my medical history and current medical condition made in the course of a bona fide physician-patient relationship, I am likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate a debilitating medical condition or symptoms associated with the debilitating medical condition.

I hereby designate_______________________________ as my caregiver under that law, and agree to conform to the Act in the medical use of marijuana.

I, ______________________________________, swear and affirm that I am at least 21 years of age and have agreed to assist with the above named patient's medical use of marijuana in accordance with that law. I have not been convicted of any felony within the past 10 years and have never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.

Confidentiality: Each party agrees and undertakes that it shall not, without first obtaining the written consent of the other, disclose or make available to any person, reproduce or transmit in any manner or use (directly or indirectly) for its own benefit or the benefit of others, any Confidential Information, save and except that both parties may disclose any Confidential Information to their legal advisers and counselors for the specific purposes contemplated by this agreement. Presentment or disclosure of this information is not prohibited as required by law or in any prosecution pertaining to the medical use of marijuana. 

For the purpose of this Agreement, Legal advisers and counselors shall mean, with respect to any party, any person licensed to practice at law, or any paralegal, legal assistant, or other person directly supervised by an attorney at law who is ultimately responsible for any and all work product. 

Subscribed and sworn before me this date: ____________________________

Patient sign here: _________________________________

Subscribed and sworn before me this date: ____________________________

Caregiver sign here: ________________________________

/s/_________________________________

Print Notary Name: ________________________________

Notary public, State of Michigan, County of _____________________

My commission expires ___________________ 

Acting in the County of ___________________ 

[GregS]

Townsend. Do you agree that a prescribed dosage can and should be written prn?

Edited August 15, 2014 by GregS

[GregS]

I think the physician statements could and should be tweaked a little.

[Dr. Bob]

Zap, you are welcome to the records (free).  I'll even send the receptionist to authenticate them (mileage).  That is a witness of fact.  If you want an opinion, you need an expert and a physician.  Every legitimate doctor keeps records, and those records are available on request.  As for Greg, that statement is pretty good, I am rather surprised.  But credit where credit is due.  If that was suffice for your clients you can have that in the mail for free Zap.  But don't expect me to hand carry it to the courtroom.

 

As for certification physicians, show a little respect for the expert your entire case is based on.  1/ Patient is qualified 2/ Patient is using a reasonable amount 3/ amount available is required for constant supply of the patient.  You need an expert physician witness to support each of those points.  While other experts, like oil makers for example, may be needed, you need the expert opinion of a doctor as to why the patient needs the oil vs another form.  The doctor holds the key to section 8.  The attorney turns the key in the lock.

 

Dr. Bob

[GregS]

Zap, you are welcome to the records (free).  I'll even send the receptionist to authenticate them (mileage).  That is a witness of fact.  If you want an opinion, you need an expert and a physician.  Every legitimate doctor keeps records, and those records are available on request.  As for Greg, that statement is pretty good, I am rather surprised.  But credit where credit is due.  If that was suffice for your clients you can have that in the mail for free Zap.  But don't expect me to hand carry it to the courtroom.

 

As for certification physicians, show a little respect for the expert your entire case is based on.  1/ Patient is qualified 2/ Patient is using a reasonable amount 3/ amount available is required for constant supply of the patient.  You need an expert physician witness to support each of those points.  While other experts, like oil makers for example, may be needed, you need the expert opinion of a doctor as to why the patient needs the oil vs another form.  The doctor holds the key to section 8.  The attorney turns the key in the lock.

 

Dr. Bob

The law holds the key to sec. 8, not the doctor, who is nothing more than a participant in the required certification. You are required by the law to maintain accessible and accurate records and disclose them on demand by the court.  

 

Would not a dosage of prn, or any like dosage,  cover the use of oil or another form?

Edited August 15, 2014 by GregS

[Dr. Bob]

The law holds the key to sec. 8, not the doctor, who is nothing more than a participant in the required certification. You are required by the law to maintain accessible and accurate records and disclose them on demand by the court.  

 

Would not a dosage of prn, or any like dosage,  cover the use of oil or another form?

 

You asking my opinion as an expert?  Otherwise, just ask anyone to say yes or no and see how the court views it.  You see if I am not an expert, I don't bring any specialized knowledge to make my opinion any more valuable than the opinion of the court or the jury.  It is just an opinion and no better than any other.

[Dr. Bob]

And Greg, the physician statement is good, I think the caregiver statement is very marginal.

[GregS]

How about ad lib (use as much that one desires, freely) ? How about ft. (fiat. Let it be made)? How about q.s. (quantum sufficia. A sufficient quantity)?

Edited August 15, 2014 by GregS

[GregS]

And Greg, the physician statement is good, I think the caregiver statement is very marginal.

The elements required by the AD are that simple and direct. There is no need to bloviate and offer up something that the law does not require. It comports with my favorite maxim, "Don't tell anyone anything they don't need to know."

Edited August 15, 2014 by GregS

[Highlander]

Zap, in your experience with Section 8 proceedings, if the Dr. is only testifying to facts, how does the defendant establish the medical need for usable MMJ and number of plants?  Does the court simply accept the defendant's own assertion that he needed that much?  Or is there some other expert witness who would testify as to what quantities are needed for the patient's medical use?

[Dr. Bob]

There is no doubt that an expert may be required if things get sticky, but generally having a certifying physician qualified as an expert is not necessary for section 8 testimony.

 

Funny, I thought all Section 8 cases were sticky or they would be dismissed before trial based on the written record without testimony.  Experts with good reputations like me have that done all the time.

[GregS]

You asking my opinion as an expert?  Otherwise, just ask anyone to say yes or no and see how the court views it.  You see if I am not an expert, I don't bring any specialized knowledge to make my opinion any more valuable than the opinion of the court or the jury.  It is just an opinion and no better than any other.

Why are you discounting the authority of the documents that you as a physician can sign in behalf of patient protection?

[Dr. Bob]

Tuttle doesn't affect cases that occurred after PA 512 went into effect.  The elements of the bonafide relationship were established then.  Prior to the medical board putting out guidance in Jan 2012 I believe, it was case by case with no standard, and in the middle time after the board put out the guidance and before it was codified in law (Tuttle) real skill and expert witnesses are required.  As you know the board guidance had two parts, one was the guidelines and the second was suggestions.  The guidelines were very similar to PA 512 and the suggestions rely heavily on the physician's opinion and the value of that opinion in the eyes of the court.

 

But hey, what do I know?  I'm just confirming it is my signature on the form.

 

Dr. Bob

[Dr. Bob]

How about ad lib (use as much that one desires, freely) ? How about ft. (fiat. Let it be made)? How about q.s. (quantum sufficia. A sufficient quantity)?

 

Gosh, you found an article on abbreviations used on prescriptions!  how about ac/hs, q hr prn, and ccfccp?  Would they work?

[GregS]

Gosh, you found an article on abbreviations used on prescriptions!  how about ac/hs, q hr prn, and ccfccp?  Would they work?

Yep, Sure did. I'm looking to you for those answers. What will work as a prescribed dosage of a drug that can be taken as needed and is self titrating?

Edited August 15, 2014 by GregS