Call For Help To Create "doctor Best Practices"

[+Green Cross]

Folks, this is Rich from Lansing. I operate Green Cross Compassion Club. This is a call-out for help to create a set of Doctor Best Practices and Procedures.

 

I'm organizing a Kalamazoo meeting tomorrow, Sunday 9/26 at 4pm, among a group of doctors who sign recommendations for prospective applicants. The goal is creating a set of Best Practices that meet or exceed the stringent standards cited by Judge O'Connell in his 9-14-2010 Concurring Opinion. We hope to prevent more patients having their State issued ID cards (or paperwork) invalidated as in the Redden/Clark case.

 

I welcome input for Best Practices from the membership and others, particularly other doctors. I will submit the ideas we generate to attorneys from Lansing's Hubbard Law Firm who are acknowledged experts (to the extent anyone -can- be) of the 2008 MMJ Act; they will review our input to see whether it meets the challenges Judge O'Connell's Opinion lays out. This process -doesn't- mean doctors will or should follow Best Practices, but the intent is to start a dialog in the profession leading to bullet-proof validation of a "bona fide doctor-patient relationship." All constructive input is welcome. Please send questions, facts, law citations, and doctors' clinical experiences to me at Rich@GreenCrossMI.com. I will compile all input and lead a discussion with doctors in attendance. Kind regards, Rich.

[peanutbutter]

#1 item .. the government must obey the voters.

 

Courts seem to be ignoring item #1.

 

We can't suddenly have changes in the rules every time any judge at all tries to force the change.

 

It seems to be suggested that we can define a set of rules that every single judge will agree with.

 

There is only one rule the will all agree on: Marijuana is against federal law.

[lawyercaregiver]

O'Connel's Concurring opinion is here:

 

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100914_C295809_45_295809C.OPN.PDF

[peanutbutter]

To be clear.

 

A concurring opinion is the voice of a single judge. This was a three judge panel.

 

A concurring opinion is a single judge saying "I agree and this is why I agree."

 

It is not the same as a ruling. Two of these three agreed on set items. It is the agreement between the various judges. Not everything a concurring opinion states is part of the ruling.

[+Green Cross]

A concurring opinion is a single judge saying "I agree and this is why I agree."

 

Peeb, that seems a good synopsis.

 

I posed this question to a JD in Lansing, expert on the MMMA:

"Does the concurring opinion carry weight of law, have influence-but-less-than-weight of

law, or is it 'just one guy's opinion'?"

 

Answer:

"The majority opinion is what constitutes the law. But the concurring opinion will be cited extensively

by attorneys and is likely to show up in later court opinions. It has "persuasive authority" as opposed

to "binding" or "controlling" authority."

 

Ergo, my efforts focus on beginning a statewide dialog toward forming Doctors Best Practices that further

protect the medical needs -and legal rights- of Michigan qualified patients. Some say the MMMAct already

does that. Me, I think the goal posts have moved after the Redden-Clark COA ruling: a doctor's testimony

was over-ruled. That bodes badly. I propose we take another unified step toward upholding the rights

of ID-carrying patients (Section 4) as well as Affirmative Defense-protected patients (Section 8). All classes

of patients -do- qualify for the protections voted for by the People of the State of Michigan under the

MMMA of 2008. Let's add another arrow to our collective quiver.

[lawyercaregiver]

There is a long record of Concurring opinions being extensively cited by later authorities. Obviously it is what we call persuasive precedent and not binding precedent but this opinion will definitely be used against us.

 

Take the time to read this! There are many, many dangerous statements hizzoner makes. For example, at one point he claims that licensed med marijuana patients DO NOT HAVE PROTECTION (even if issued a State license) if there doctor permission slip is faulty (i.e. does not arise out of a legitimate patient-doctor relationship). He defines this as MULTIPLE VISITS with the patients "regular" treating doctor. Well my doctor does federal research and absolutely cannot sign a marijuana permission slip so I went to the marijuana clinic. This judge would say I do not have a legitimate doctor-patient relationship.

 

He also makes the dark claim that nobody in Michigan should use marijuana until the issues are resolved and threatens everybody with a "knock on the door" from a DEA agent if they fail to comply with his ideas.

 

He also claims the MMMA does not modify the public health code and only makes medical marijuana legal in very specific instances, ignoring and rejecting section 8 on the Affirmative Defense for medical use.

 

This is a very dangerous and needs to be answered immediately in the court of appeals.

[lawyercaregiver]

I agree the pot docs need to get together and put out a Best Practices White Paper to combat this opinion.

 

Hizzoner is right when he describes a doctor who was giving out slips to anybody who slipped $50.00 under the door. Clearly the MMMA requires a doctor-patient "bona fide" relationship.

 

However he also demands multiple visits from a treating physician. The MMMA does not require this. A records review should be sufficient. A medical/clinical exam should not be necessary if the records are part of the file. However, obviously $50.00 slipped under the door does not cut it either.

 

This judge rejects a doctor who conducted a 1/2 hour meeting appointment with the patient saying that is not a legitimate doctor-patient relationship. HOGWASH! A 10 minute meeting, even a 5 minute perfunctory examination is a doctor-patient relationship.

 

He says pain management needs "regular follow up." Sure it does- if the doc is prescribing dangerous narcotics for pain but NOT for recommending the "safest therapeutic substance known to man."

 

I think yearly follow ups with the pot doc, a records review and a 10 minute appointment are more than sufficient.

 

What say you all?

[bobandtorey]

I agree the pot docs need to get together and put out a Best Practices White Paper to combat this opinion.

 

Hizzoner is right when he describes a doctor who was giving out slips to anybody who slipped $50.00 under the door. Clearly the MMMA requires a doctor-patient "bona fide" relationship.

 

However he also demands multiple visits from a treating physician. The MMMA does not require this. A records review should be sufficient. A medical/clinical exam should not be necessary if the records are part of the file. However, obviously $50.00 slipped under the door does not cut it either.

 

This judge rejects a doctor who conducted a 1/2 hour meeting appointment with the patient saying that is not a legitimate doctor-patient relationship. HOGWASH! A 10 minute meeting, even a 5 minute perfunctory examination is a doctor-patient relationship.

 

He says pain management needs "regular follow up." Sure it does- if the doc is prescribing dangerous narcotics for pain but NOT for recommending the "safest therapeutic substance known to man."

 

I think yearly follow ups with the pot doc, a records review and a 10 minute appointment are more than sufficient.

 

What say you all?

 

Yep

[peanutbutter]

Peeb, that seems a good synopsis.

 

I posed this question to a JD in Lansing, expert on the MMMA:

"Does the concurring opinion carry weight of law, have influence-but-less-than-weight of

law, or is it 'just one guy's opinion'?"

 

Answer:

"The majority opinion is what constitutes the law. But the concurring opinion will be cited extensively

by attorneys and is likely to show up in later court opinions. It has "persuasive authority" as opposed

to "binding" or "controlling" authority."

 

Ergo, my efforts focus on beginning a statewide dialog toward forming Doctors Best Practices that further

protect the medical needs -and legal rights- of Michigan qualified patients. Some say the MMMAct already

does that. Me, I think the goal posts have moved after the Redden-Clark COA ruling: a doctor's testimony

was over-ruled. That bodes badly. I propose we take another unified step toward upholding the rights

of ID-carrying patients (Section 4) as well as Affirmative Defense-protected patients (Section 8). All classes

of patients -do- qualify for the protections voted for by the People of the State of Michigan under the

MMMA of 2008. Let's add another arrow to our collective quiver.

 

Within the context or the COA, it seems to me that the protections afforded to the doctors of this state need to be enforced. The concurring opinion that was released was an open war declaration against the doctors of this state.

 

This judge disclosed the name of Bob and Torey's doctor. Isn't this judge supposed to go to jail for doing that?

 

Judge OConnell wrote about every section of the law with the exception of that section that might send him to jail.

 

The identity of the doctor is supposed to be confidential information. It can not be disclosed under pain of a jail term.

 

We need to get a very clear picture of when this level of protection is effective and who the jail terms apply to.

 

One problem is that if you ask any judge, PA or police officer "does this apply to you?" and the consistent answer will be "No. Not me."

 

So who is to judge if a judge broke the law?

[1337Gr33n]

I agree wholeheartedly with what Green Cross is trying to do here. whether or not the judge was right or wrong in Bob's case, it is good for doctors to arrive at something that can protect them professionally, as well as serve us legally. Only good can come from a certifying doctor becoming more thorough.

[greenbuddha]

#1 item .. the government must obey the voters.

 

Courts seem to be ignoring item #1.

 

We can't suddenly have changes in the rules every time any judge at all tries to force the change.

 

It seems to be suggested that we can define a set of rules that every single judge will agree with.

 

There is only one rule the will all agree on: Marijuana is against federal law.

 

Change at the FEDERAL level has to get done otherwise the 'local' LEOs, judges and PAs will ALWAYS have a reason to kick in your door... NO MATTER WHAT STATE LAW SAYS.

 

Until change comes at the 'Federal' level we will be constantly fighting these 'local' battles. 'Law enforcement' would lose FAR too much money to allow the MMJ law to go along without harassment.

 

We have to hope that California or one of the other 'progressive' States will 'LEGALIZE' cannabis, which will make the Federal government re-evaluate the Federal laws... just as was done at the 'repeal' of prohibition on alcohol.

 

Yes, there will still be law suits, but they will be taking place at the National / Federal level.

 

When this occurs CHANGE will REALLY start to take place... because the 'SUPREME COURT of the UNITED STATES will be forced to get involved and make MAJOR decisions.

 

Until these things begin to happen between the States and the Feds... it will be 'business as usual' for the LEO's, judges and PAs.

 

We have to get our 'act together' on BOTH the STATE and FEDERAL levels.

 

VOTE this NOVEMBER 2nd.

[+Green Cross]

Within the context of the COA...protections afforded to the doctors of this state need to be enforced.

 

IT IS KEY TO PROTECT AND DEFEND DOCTORS and here's why:

1. We have a MEDICAL NEEDS-based law.

2. Doctors are the GATEKEEPERS to ID card issuance: only Michigan-licensed MDs and DOs are allowed to sign medical marijuana recommendation forms.

3. Doctors must sign a recommendation form or nobody becomes a "qualified patient" or, by extension, a "primary caregiver."

4. After the COA ruling on Redden-Clark a doctor's recommendation was over-ruled as not rising to a "bona fide doctor-patient relationship."

5. There are precious few Michigan doctors who sign recommendation forms; the Redden-Clark ruling likely had a chilling effect on those doctors who do sign forms and presumably will further reduce that number since no doctor wants to be placed in a position of having to testify in court to defend their professional judgment.

 

Green Cross has 3 doctors who contract with my compassion club. They point out the wider physician community opposition to being told "how to doctor" by judges or lawyers. I seek to facilitate dialog among doctors statewide to address whether, and how, a set of Doctor Best Practices would aid qualifying patients and will withstand a Court challenge.

 

FYI to doctors: I will host a toll free conference call Thursday 9/30 at 7:30pm. Limited to doctors please. We won't glean all the answers from one teleconference but it's a start. More dialog will be needed. For the toll free phone number and PIN to participate Thursday evening, please contact me directly at Rich@GreenCrossMI.com.

 

Kind regards,

 

Rich

Executive Director, Green Cross Compassion Club

Lansing-based with services statewide.

[+Silverblue]

I agree the pot docs need to get together and put out a Best Practices White Paper to combat this opinion.

 

Hizzoner is right when he describes a doctor who was giving out slips to anybody who slipped $50.00 under the door. Clearly the MMMA requires a doctor-patient "bona fide" relationship.

 

However he also demands multiple visits from a treating physician. The MMMA does not require this. A records review should be sufficient. A medical/clinical exam should not be necessary if the records are part of the file. However, obviously $50.00 slipped under the door does not cut it either.

 

This judge rejects a doctor who conducted a 1/2 hour meeting appointment with the patient saying that is not a legitimate doctor-patient relationship. HOGWASH! A 10 minute meeting, even a 5 minute perfunctory examination is a doctor-patient relationship.

 

He says pain management needs "regular follow up." Sure it does- if the doc is prescribing dangerous narcotics for pain but NOT for recommending the "safest therapeutic substance known to man."

 

I think yearly follow ups with the pot doc, a records review and a 10 minute appointment are more than sufficient.

What say you all?

I agree. I also see that this judge is legislating from the bench. It concerns me deeply that people are interpreting his words as law, picking and choosing which parts of the law to ignore. Something must be done about this. I've seen some dr's for only a few minutes, yet that visit was just as valid as a longer one. I do wish those clinics would do more than just sign a paper, even if they do talk with the patient for a few minutes, there's no followup, no one to stand behind the patient in a defense. If the MDCH approves that person's paperwork, that would say to me they thought the papers were legit and there should be no further questions. They don't have time to check every dr/pt relationship. From what I've seen, they're swamped with apps and are terribly understaffed. Oh I like the spelling of "hizzoner." He does have some valid points though, but ignoring parts of the law just to make a point is WRONG. By treating his decision as if it were law, we are giving him too much power. I'm glad people realize it for what it is but this isn't over yet, unfortunately. It's just an opinion, right? But if it does carry some weight it's good to adapt a strategy that keeps it in mind. A lot of the problem is that many drs don't do the recommendations, for whatever reasons, thus leaving the door open for those clinics. If more drs were allowed to do them, who already do have established relationships with their patients, it'd solve a LOT of problems and those traveling clinics would be much fewer. The ones dragging B&T through the courts picked on the wrong people, their dr/pt relationship is solid.

 

Sb

[Dr. Bob]

I've been involved with Rich on this as well. Again it is not an issue of the fairness of the ruling, or the force of law and a concurring opinion. It is an attempt by some of the major legitimate clinics to develop a standard of care for certifications that is defensible and then submit it to the MDCH for review and comment. The goal here is to establish some key features of a certification clinic in light of the CO and make sure we meet all standards. Hopefully this will take the majority of the hotel signature mills out of the picture and raise the bar for the remaining travel/fixed based clinics. The end result will be higher quality care and protection of patients/physicians from legal risk.

 

While I raised the issue initially on the boards, this is Rich's baby and I applaud him for acting as host and calling the conference. I would encourage certification physicians to review the opinion and submit a list of things they would like to see in a standard of care, then participate in the conference to discuss them with the group.

 

Dr. Bob

[greenbuddha]

I agree. We should get something along these lines established before the MDCH OR a judge does it for us.

 

However, I would have thought that MOST physicians would have had enough mental wherewithal to do an examination and a 'writeup' that would hold up in court just as a common 'standard of practice'.

 

I know if I were a physician, I sure as h*ll would... just to help keep the 'licensing board' off my a** if for no other reason.

[Dr. Bob]

That is quite true, most doctors do but the key here is to show follow up. Though many patient/physician visits are single visits (annual eye exam for example or VA disability exam) the courts want to see follow up. By having a protocol in place, approved or reviewed by the MDCH, we can give more defensible certifications. Again, just trying to improve the process and keep patients and the docs safe.

 

Dr. Bob

[+Silverblue]

It's great to see this is being worked on by someone other than some judge or MDCH worker who doesn't understand the law as well as many do here. Presenting this to MDCH, written by drs, would be a very good move for our community. Thanks to all who are stepping up to do this!

 

Sb

[Dr. Bob]

Rich at Green Cross in Lansing is leading the charge and got some good certification clinic docs taking part. Kuddos go to him.

[lawyercaregiver]

A few more thoughts on this decision:

 

1. Basic statutory construction (i.e. how you interpret a statute like the Michigan Medical Marijuana Act) requires:

 

a. Plain Meaning: The plain and everyday meaning of each word in the statute is given equal weight.

 

b. Intent of the Legislature: Sometimes the Congressional record and even Congressional hearing transcripts are cited to determine the intent of Congress when the legislation was passed (or the intent of the State House and Senate if it is a State law.

 

Here is where it gets tricky. This law was passed by the PEOPLE. Thus it is THE INTENT OF THE PEOPLE that needs to be considered in the interpretation of the MMMA.

 

Here is some evidence for intent of the people:

 

Favor Medical Marijuana: 81%

Oppose: 18%

Favor Full Legalization: 46%

Oppose: 51%

 

The actual vote approving the law was 63% in favor.

 

Nearly 1/2 favor full legalization (46%) so only a 5% of the 51% who oppose full legalization needs to be found in order to get a governing majority- the essence of "intent" in a democratic State. In other words, those 51% who oppose outright legalization fall on a range of values from very close to favoring legalization to absolutely opposed. We are interested in the 5% of that continuum that comes closest to believing in full legalization but are not quite ready to endorse full legalization. That 5% added to the 46% gives us a governing majority and manifests the intent of the voters.

 

The intent of the voters is crystal clear. They wanted something very, very close to outright legalization but not quite full legalization. The MMMA needs to be interpreted in that light- that the intent of the legislature (the people) was to have a very open and free availability of medical marijuana but with some government restrictions so that at least a show is made in favor of distribution for medical purposes. But remember, even though it is a slim minority, nearly 1/2 of the legislators (the people) do not want ANY criminal enforcement and would do away with the medical veneer altogether.

 

OK class dismissed and we will pick this up later.

[peanutbutter]

 

Favor Medical Marijuana: 81%

Oppose: 18%

Favor Full Legalization: 46%

Oppose: 51%

 

Very nice .. where did the numbers come from? I'd like to cite them.

 

 

The intent of the voters is crystal clear. They wanted something very, very close to outright legalization but not quite full legalization. The MMMA needs to be interpreted in that light- that the intent of the legislature (the people) was to have a very open and free availability of medical marijuana but with some government restrictions so that at least a show is made in favor of distribution for medical purposes. But remember, even though it is a slim minority, nearly 1/2 of the legislators (the people) do not want ANY criminal enforcement and would do away with the medical veneer altogether.

 

OK class dismissed and we will pick this up later.

 

Intent. I don't believe intent can be used that way. There is no record of debate for the voters. No record of intent.

 

The only recorded intent of the voters was the language on the ballot.

 

The voters were asked directly if both registered and unregistered patients AND caregivers could use medical defense in any charge involving marijuana.

 

Directly asked and directly answered.

[lawyercaregiver]

Very nice .. where did the numbers come from? I'd like to cite them.

 

Intent. I don't believe intent can be used that way. There is no record of debate for the voters. No record of intent.

 

The only recorded intent of the voters was the language on the ballot.

 

The voters were asked directly if both registered and unregistered patients AND caregivers could use medical defense in any charge involving marijuana.

 

Directly asked and directly answered.

 

 

ABC News/Washington Post Poll dated January 18, 2010:

 

http://abcnews.go.com/PollingUnit/Politics/medical-marijuana-abc-news-poll-analysis/story?id=9586503

 

It is certainly a novel use of "intent of the legislature" but then this is a novel law, poorly written with a whole lot of interpretation needed. What about dispensaries? What are the doctors standards? What if you don't have your card- yet? A LOT of questions to interpret.

 

I am saying we interpret using the plain meaning standard and the intent of the legislature (the people). So we need to understand what the people intended when they voted for this law. ANY law is a collection of compromises so if there is a conflict (and there often is) we have to look at what the legislature really wanted to do when they passed the law- after looking at what the law precisely says (i.e. plain meaning). For example, the MMMA does not mention dispensaries. Did the people intend to permit this given section 8 (the affirmative defenses section) and the section 4 (the medical use section). I think they clearly did intend this.

 

The MMMA also does not tell us what the standards are for doctors to give out these permission slips except that it practically exempts doctors from any liability for handing them out! As the judge suggested it is up to the medical profession to self regulate in this circumstance- especially when their patients are being directly threatened with serious harm (i.e. arrest and incarceration). If marijuana is efficacious and effective with a low risk of harm (in contrast to Hizzonner's unconvincing footnote and characterizations of marijuana as a dangerous "schedule 1 drug") then the medical profession is in the best position to defend that position and issue liberal(in compliance with the MMMA) procedures that define the central question of what constitutes a "bona fide doctor-patient relationship."

 

This is the time to fight folks. There is some pushback but I am confident we are winning this one.

[peanutbutter]

ABC News/Washington Post Poll dated January 18, 2010:

 

http://abcnews.go.com/PollingUnit/Politics/medical-marijuana-abc-news-poll-analysis/story?id=9586503

 

It is certainly a novel use of "intent of the legislature" but then this is a novel law, poorly written with a whole lot of interpretation needed. What about dispensaries? What are the doctors standards? What if you don't have your card- yet? A LOT of questions to interpret.

 

I am saying we interpret using the plain meaning standard and the intent of the legislature (the people). So we need to understand what the people intended when they voted for this law.

 

There is no existing official record of debate. Nothing to review.

 

Except for the vote.

 

The wording on the ballot proposal is the only existing wording outside the law itself to rely upon for "intent."

 

You might have one opinion of what the intent was. I might have another. Neither of which could be proven in public documented debate.

 

Except for the wording on the ballot.

 

That is recorded. Those few recorded words are the intent of the voters. And those few words do indeed add light to our understanding of this law.

[+Green Cross]

UPDATE on efforts to create Doctor Best Practices.

 

On 9/30/2010 a group of 4 doctors, 2 lawyers, and I (former college prof) discussed by teleconference the topic whether Best Practices are needed in the cannabusiness to protect doctors. Without doctors signing mmj recommendations no one becomes a Qualified Patient or Primary Caregiver.

 

Summarizing, we concluded that stringent Best Practices aren't required at this point but it's wise to create a nonprofit professional association that includes a set of Standards of Care doctors may follow to document patients' history of illness, diagnoses, treatments, and offer follow-up care if indicated. Volunteer doctors and lawyers are drafting such Standards. When they're ready we'll publish them and invite doctors to embrace them. We will conduct another teleconf. in about 10 days to discuss the draft Standards, take new input, and form an Action Plan. The goals include protecting doctors, reducing chances that prosecutors could undermine the basis of a bona fide doctor-patient relationship, and assuring patients won't have their medical marijuana ID cards voided by Courts unjustly. Stay tuned to this forum for more updates as they become available.

 

Rich

 

Exec Dir. - Green Cross Compassion Club based in Lansing

[+Silverblue]

Thank you all who are working on this project.

 

Sincerely, Sb