So You May Need To Rely On Section 8?

[CaveatLector]

Think your card automatically will qualify you for a section 8, aside from proving the weight/uninteruppted supply elements? Not necessarily! To get a card, the doc must complete a full assessment of your medical history OR otherwise state that you are likely to receive therapeutic or palliative. . .

 

Here is section 4f

 

(f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a 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 associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

 

Be sure you qualify first. I posted a thread on this a while back but feel it should be refreshed given the recent Sup Ct ruling. So here we go.

 

 

To use section 8 the doc must complete a full assessment of the pt's medical history and current medical condition.

 

(1) A physician has stated that, in the physician's 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;

 

So what does this mean? It means that if your doctor did not complete a full assessment of your medical history when you applied for the card, but instead satisfied the 2nd element to get you your card(that he otherwise stated that you are likely to receive therapeutic or palliative benefit . . .) then you don't meet the requirements to use section 8.

 

This is very important. Don't just assume that your card will qualify you for sec 8. Make sure the cert. doc completes that full assessment of your history because it is required. Sec 8 is a more restrictive way to go.

Edited February 12, 2013 by CaveatLector

[thecannabiskid]

What about sec. 8 for a CG, with multiple patients? What if some have full assessments, and others don't?

[Kingdiamond]

Have they started to prosecute and or arrest or plan to arrest those the patients because of the shady practices of the card mill doctors ?

[t-pain]

here is court of appeals on people v ted anderson:

http://michiganmedicalmarijuana.org/index.php?showtopic=41232

http://publicdocs.co...300641o.opn.pdf

 

The trial court did not err when it determined that, to the extent that Anderson failed to

present sufficient evidence to establish his § 8 defense, he would be unable to present that

defense at trial. Kolanek, 491 Mich at 412-413, citing People v Reed, 294 Mich App 78, 86; 819

NW2d 3 (2011) and Anderson, 293 Mich App at 65 (M. J. KELLY, J., concurring).

 

dont hedge this all on the medical records. you have to present evidence that you actually use the marijuana that you have.

 

this next paragraph is probably the most important part, and what you need to cite in a sec8 defense when the judge tries to be judge/jury/executioner. for sec8 prelim hearing, the facts are presented and the judge can only dismiss the case or send to trial by jury. the judge CANNOT deny you from showing sec8 to a jury unless you fail to provide the evidence your doctor reviewed your records, made a recommendation and that the marijuana was to treat your symptoms.

 

The trial court also erred by assessing the weight and credibility to be

given Anderson’s evidence and by resolving any factual disputes. Kolanek, 491 Mich at 411.

The trial court’s sole function at the hearing was to assess the evidence to determine whether, as

a matter of law, Anderson presented sufficient evidence to establish a prima facie defense under

§ 8 and, if he did, whether there were any material factual disputes on the elements of that

defense that must be resolved by the jury. Id. at 412-413.

Edited February 12, 2013 by t-pain

[t-pain]

people v hinzman, currently appealing to supreme court after CoA did a crappy ruling (yet again)

http://michiganmedic...showtopic=40657

i think because at the time, they judge said sec8 doesnt apply if sec4 is broken. so they didnt even try for sec8 during the trial.

 

people v vanderbutts for sec8 denial CoA:

http://michiganmedic...showtopic=37155

First, regarding the first element of the section 8 affirmative defense, defendant

failed to present evidence at trial that a physician conducted a full assessment

 

Second, defendant’s own admissions preclude him from establishing the required second element of the section 8 affirmative defense. Defendant testified that he stored marijuana in anticipation of possibly becoming a caregiver in the future.

 

the MMMA only provides protections to registered CG and registered/unregistered Patients for marijuana to treat their own, or their registered patients medical conditions. so either you are treating someone registered, or its your own marijuana. dont be 'holdin' it for no one else..

Edited February 12, 2013 by t-pain

[t-pain]

lansing circuit court sec8 with 19 page opinion!

http://michiganmedicalmarijuana.org/index.php?showtopic=41856

wonder if/when the AG will appeal?

[bobandtorey]

i think he has already taken the plea deal

[Dr. Bob]

lansing circuit court sec8 with 19 page opinion!

http://michiganmedic...showtopic=41856

wonder if/when the AG will appeal?

 

Bad example, one that resulted from asking the wrong question of the court.

 

Registration good 20 days after 'certification' if not acted on for 'any' reason to include not mailing it in?

 

Like I said, poor example.

 

Dr. Bob

[bobandtorey]

Bad example, one that resulted from asking the wrong question of the court.

 

Registration good 20 days after 'certification' if not acted on for 'any' reason to include not mailing it in?

 

Like I said, poor example.

 

Dr. Bob

 

maybe

can you give us a good one?

[bobandtorey]

http://michiganmedicalmarijuana.org/index.php?showtopic=42454&hl=&fromsearch=1

[thecannabiskid]

Is there some place on the certification where a patient could look to see if their Doc did a full assessment or not?

[Dr. Bob]

That is based on the doc and the clinic and how they deal with you, the records required, the records made, and the follow up offered.

 

If you go to a cattle call with no doctor seeing you (ask if they are a doctor) clearly you didn't. If you walk away knowing you saw a doc and it was like any other doctor visit, you should be ok.

 

Dr. Bob

[Dr. Bob]

maybe

can you give us a good one?

 

http://www.drbobmmj.com/162-article-folder/262-bona-fide-dr-pt-relationship-defended-in-antrim-co.html

[thecannabiskid]

That is based on the doc and the clinic and how they deal with you, the records required, the records made, and the follow up offered.

 

If you go to a cattle call with no doctor seeing you (ask if they are a doctor) clearly you didn't. If you walk away knowing you saw a doc and it was like any other doctor visit, you should be ok.

 

Dr. Bob

Makes sense.

 

So this is is more of a worry for patients with mail in certs then?

[Dr. Bob]

here is court of appeals on people v ted anderson:

http://michiganmedic...showtopic=41232

http://publicdocs.co...300641o.opn.pdf

 

 

 

dont hedge this all on the medical records. you have to present evidence that you actually use the marijuana that you have.

 

this next paragraph is probably the most important part, and what you need to cite in a sec8 defense when the judge tries to be judge/jury/executioner. for sec8 prelim hearing, the facts are presented and the judge can only dismiss the case or send to trial by jury. the judge CANNOT deny you from showing sec8 to a jury unless you fail to provide the evidence your doctor reviewed your records, made a recommendation and that the marijuana was to treat your symptoms.

 

2.5 oz or less, 12 plants or less are PRESUMED medical use. You will have to justify amounts over the limits though.

 

Dr. Bob

[Dr. Bob]

Makes sense.

 

So this is is more of a worry for patients with mail in certs then?

 

You mean the ones that did it through the mail, or went to a 'cattle call' clinic that didn't have a doctor, or 'dropped off the forms' with payment and no records or contact with the doctor.... MOST DEFINITELY. These are all scenarios that have occurred and they are not valid. Do not respond to offers to 'renew by mail' or 'no records required'.

 

Dr. Bob

[CaveatLector]

dont hedge this all on the medical records. you have to present evidence that you actually use the marijuana that you have.

The idea here isn't to hedge. The idea is to be sure you are protected. Yes, you must meet all of the elements in order to being a sec 8 defense. However, the purpose in this thread is so you realize that your card, alone, may not be sufficient to assert the doc. rec. part.

Edited February 12, 2013 by CaveatLector

[bobandtorey]

 

 

You mean the ones that did it through the mail, or went to a 'cattle call' clinic that didn't have a doctor, or 'dropped off the forms' with payment and no records or contact with the doctor.... MOST DEFINITELY. These are all scenarios that have occurred and they are not valid. Do not respond to offers to 'renew by mail' or 'no records required'.

 

Dr. Bob

 

I agree with this for sure but we have from the Start that's why I went to THC-F

Back then the TV crew went in with Camera showing you the hole Process

And that's why we went

After seeing it on TV we knew they were legal as how they did them and had done many in other States

[thecannabiskid]

The idea here isn't to hedge. The idea is to be sure you are protected. Yes, you must meet all of the elements in order to being a sec 8 defense. However, the purpose in this thread is so you realize that your card, alone, may not be sufficient to assert the doc. rec. part.

I agree, I could imagine a patient thinking they are protected under sec. 4, getting caught with 2.6 oz. by accident( maybe his CGs scales were off) Then thinking ok all ill have to do is go in and explain it was for medical use, only to find out they don't qualify for a sec. 8 defense.

 

I would not recommend straying outside of sec. 4, but accidents happen and patients should know the possibilities.

[bobandtorey]

 

I agree, I could imagine a patient thinking they are protected under sec. 4, getting caught with 2.6 oz. by accident( maybe his CGs scales were off) Then thinking ok all ill have to do is go in and explain it was for medical use, only to find out they don't qualify for a sec. 8 defense.

 

I would not recommend straying outside of sec. 4, but accidents happen and patients should know the possibilities.

 

I to agree and will add its why we here need to support the people that our in court much more

And give to the MMMA so that we all have protection and it will help the Lawyers fight for the people that have paper work and are waiting on their cards

[bobandtorey]

 

 

http://www.drbobmmj.com/162-article-folder/262-bona-fide-dr-pt-relationship-defended-in-antrim-co.html

 

OK I see it may happen just not yet I will be watching for it

[Dr. Bob]

Just have your ducks in a row and don't get loose with the law. Need a lawyer that will use it and a doc that will back you with a bona fide relationship.

 

Works fine.

 

Dr. Bob

[maxmax]

Think your card automatically will qualify you for a section 8, aside from proving the weight/uninteruppted supply elements? Not necessarily! To get a card, the doc must complete a full assessment of your medical history OR otherwise state that you are likely to receive therapeutic or palliative. . .

 

Here is section 4f

 

(f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a 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 associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

 

Be sure you qualify first. I posted a thread on this a while back but feel it should be refreshed given the recent Sup Ct ruling. So here we go.

 

 

To use section 8 the doc must complete a full assessment of the pt's medical history and current medical condition.

 

(1) A physician has stated that, in the physician's 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;

 

So what does this mean? It means that if your doctor did not complete a full assessment of your medical history when you applied for the card, but instead satisfied the 2nd element to get you your card(that he otherwise stated that you are likely to receive therapeutic or palliative benefit . . .) then you don't meet the requirements to use section 8.

 

This is very important. Don't just assume that your card will qualify you for sec 8. Make sure the cert. doc completes that full assessment of your history because it is required. Sec 8 is a more restrictive way to go.

 

the way I see it your last three chart notes won't be enough as most thought it would be ?

[Dr. Bob]

Actually, yes it probably would be. Depends on what is in them, what the condition is, reputation and presentation of the doctor, and many other factors that go into medical decision making.

 

Dr. Bob