Cannabis in Oregon - Legality - Conflict With Federal Drug Law - Physician Liability

Physician Liability

Physicians who recommend or support marijuana cannot have their licenses revoked according to a September 7, 2000 decision by the U.S. District Court. The case, Dr. Marcus Conant, et al., v. McCaffrey et al., arose from two events: the November 1996 passage of California Proposition 215 which authorized medical marijuana, and a December 30, 1996 response to the law by the director of the Office of National Drug Control Policy which said

a practitioner's action of recommending or prescribing Schedule I controlled substances is not consistent with the 'public interest' (as that phrase is used in the federal Controlled Substances Act) and will lead to administrative action by the Drug Enforcement Administration to revoke the practitioner's registration.

The statement accompanied authorization for the U.S. Inspector General for Health and Human Services to exclude individuals from participation in Medicare and Medicaid programs, such as physicians who recommend marijuana to patients for medical purposes. Clarification two months later affirmed that mere discussion of any drugs with a patient was not grounds for sanction, but affirmed that physicians "may not intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law." The court's decision acknowledged that the government has a legitimate concern that physicians might recommend marijuana in bad faith. However, physicians in good faith using honest medical judgment should not fear DEA sanctions. Furthermore,

Given the doctrine of constitutional doubt, the government’s construction of the Controlled Substances Act cannot stand. The government should be permanently enjoined from (i) revoking any physician class member’s DEA registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law.