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High risk for Florida doctors who order medical marijuana

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Regardless of how much discretion they get once new regulations shake out, Florida physicians will be the gatekeepers between patients and medical marijuana.

It’s a role that very few physicians have embraced.

According to the Health Department’s Office of Compassionate Use — the new three-person state agency tasked with administering Florida’s medical marijuana program — 494 Florida doctors are licensed to order medical marijuana as of Jan. 18.

As of Monday, 554 physicians and 127 osteopathic physicians have taken the Florida Medical Association’s continuing education course on Compassionate Medical Cannabis, according to the FMA.

If estimates on the size of the patient pool are correct, the state may need more qualified doctors.

The Office of Economic and Demographic Research estimates that Florida can expect about 450,000 medical marijuana patients per year under Amendment 2 expansion. That number could increase, depending on the qualifying conditions.

In Oregon, high demand for medical marijuana led to so-called prescription mills, with individual doctors making thousands of recommendations for patients each year. Statistics on Oregon’s Medical Marijuana Program show that 24 Oregon physicians were responsible for 75 percent of all medical marijuana prescriptions in 2016. The 24 physicians accounted for 51, 597 medical marijuana applications.

One doctor’s take

Despite the program’s growth, many doctors hesitate to add medical marijuana to their practices.

“I would have to think long and hard before I did this as a sideline if I were in a traditional medical practice,” Dr. Joseph Dorn, founder of Medical Marijuana Treatment Center of Florida, told Watchdog.

Dorn worked in hospice care before becoming medical director of Surterra Therapeutics, one of Florida’s seven licensed dispensaries. He estimates that he was one of the first few dozen doctors in Florida to get licensed back in 2015, when he left his medical director post.

“It was frustrating because we had good products and there were many patients who needed it, but they couldn’t find doctors who were doing it at the time,” Dorn said.

Given his experience both in palliative care and in the medical marijuana industry, it was an easy transition for Dorn, but he understands why others in the medical community are reluctant to jump on the medical marijuana train.

“One of the biggest obstacles, I think, [is] their fear, because it is federally illegal and most doctors still use their [Drug Enforcement Administration] licenses to order controlled substances on their regular patient populations,” he said.

He added that doctors might be concerned about putting their DEA licenses at risk, and they also are unsure of what changes at the federal level could mean for issuing recommendations.

“I think right now with the changing administration at the federal level, there’s a concern, because we don’t really know what the new attorney general is going to do. So people are moving a little more cautiously, and probably understandably so.”

Lawyers weigh in

Kate Bell, legislative counsel for the Marijuana Policy Project, agrees.

“The requirement that a physician specify the quantity of medical marijuana that a patient may possess is a serious flaw that is not addressed in either the proposed regulations from the Department of Health or the bill proposed by Senator [Rob] Bradley,” Bell told Watchdog in an email.

Bell said another problem is that the proposed regulations would continue to require doctors to “order” medical cannabis, which is close to the same thing as “prescribing” cannabis — a prohibited act.

“While recommending medical marijuana is protected by the doctor’s First Amendment rights, to order a quantity of cannabis is not, because it would show a specific intent that the patient obtain cannabis under the controlling legal precedent (Conant v. Walters, Ninth Circuit Court of Appeals),” Bell said. “Thus, current Florida rules put doctors at risk under federal law.”

Guidelines put forth by the Office of Compassionate Use call for doctors that “order” medical marijuana for their patients to submit information, including dosage information, to the state registry. They must also file a treatment plan with the University of Florida.

Matthew Ginder, senior counsel for the Florida branch of Greenspoon Marder’s Cannabis Law group, told Watchdog in an email that “the current law undoubtedly places burdens on physicians that do not exist in many other states.”

He added that the requirements for physicians under Amendment 2 were “less onerous,” and that hopefully the Legislature would address the semantics of recommending versus prescribing medical marijuana. As it stands, Ginder questioned if “ordering” a prescription would be protected under free speech precedent.

“In short, it is understandable why physicians are hesitant to register under the current medical marijuana program,” Ginder said.

Sunai Edwards, an attorney with the Tampa-based firm Gray-Robinson, says the lack of clarity in the rules should make doctors cautious about how to remain compliant with state law, federal concerns aside.

Edwards, whose husband is a physician licensed to order medical marijuana, added that she thought it would be interesting to see what input physicians would have in the rule-making process, whether they would seek more discretion or more dictates for the ordering process.

Better things to do

“I think what I would say is both,” said Dr. Stephen Mamus, medical director of the Cancer Center of Sarasota. Mamus said he would like to see a list of conditions for which physicians were allowed to order marijuana while also allowing discretion for doctors when patients fall outside of a narrow diagnosis.

He added that fears of federal repercussions — along with the $1,000 course fee — certainly discouraged more doctors from joining the registry. However, he felt that quibbling over the state’s legal language was ultimately irrelevant.

“It doesn’t matter what the state of Florida says, if they said nothing or they said everything, because ultimately it’s a federal issue,” Mamus said. “Even if you had the state of Florida do everything that every single doctor in the state of Florida wanted, that still does not protect you from the federal law.”

Mamus added that he was very conservative in choosing how he recommended medical marijuana and only ordered it for cancer patients with life expectancies of less than a year.

“I really can’t see that the federal government is going try to prosecute doctors who are trying to help patients dying from cancer. They’ve got better things to do with their time,” he said.

Erin Clark is a Florida reporter for Watchdog.org. A graduate of the University of Richmond, Clark competed on the professional tennis circuit for several years before returning to writing. Her work has been republished on Townhall and other news sources. She can be reached at eclark@watchdog.org.

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