Journal of the California Cannabis Research Medical
By Frank H. Lucido, M.D.
Due to its excellent safety profile and the wide variety of illness for which
cannabis can alleviate symptom distress, recommending it —especially to patients
who have used it successfully—is not inherently risky. However, due to law
enforcement’s institutional bias against cannabis, knowledge of the legal
aspect of cannabis consultations is at least as important as the medical
knowledge, both to protect the patient and to protect the doctor.
The extent to which physicians’ offices or free-standing cannabis clinics may
work with and cross-refer to and from dispensaries is unclear. I consider this
to be a thoughtless and short-sighted process — and perhaps unethical. Moreover,
cross-referrals to a dispensary could cost the recommending physicians (and
any practitioners they employ), the full protection of the Conant decision,
which entitles us under the First Amendment to discuss cannabis as a treatment
My concerns are:
• Does this close association between dispensaries and recommending physicians
impact the quality of the legal protection that is at the heart of a pure medical-legal
• Will patients have a harder time defending their medical use in court, and/or
be brought to court more often when prosecutors think they can discredit sloppy
medical consultation work?
• How will the hard-working pioneers of medical cannabis consultation, who have
taken the initial risks with the Medical Board and law enforcement, be affected
when patients seek out cheaper dispensary-associated clinics and/or providers
whose practice standards are so lax as to be open to criticism about the authenticity
of the doctor-patient relationship?
Some activists welcome the new wave of clinics that employ physicians’ assistants
as a sign of healthy marketplace competition. They contend that doctors charge
too much for their services, and patients would benefit from a price war. I
disagree (and not out of economic self-interest; I have a thriving family practice
and am not dependent on doing medical cannabis consultations.)
A $50 visit is no bargain if the recommendation
There are two important purposes for a medical cannabis consultation:
to give the patient competent evaluation and advice, and to provide
the patient with the legal protection of the California Compassionate
Use Act. Regarding the former, a physician’s assistant is not a physician.
Regarding the latter, a $50 visit is no bargain if the recommendation
is indefensible. If a patient with deficient documentation gets arrested,
the cost of attorney’s fees and court appearances will more than cancel
out this kind of savings.
My standard for recommending medical cannabis —requiring documentation that
the patient is seeing their primary doctor for the serious illness or symptoms
that they treat with cannabis— is geared to making the recommendation “bullet-proof” and
avoiding additional expense and inconvenience.
On the occasions when law enforcement calls to verify a recommendation and
I am able to say: ‘Not only did the patient consult me about his/her illness,
but he/she sees his/her primary doctor regularly for this serious problem,” I
almost always receive a polite reply along the lines of “Thank you, we just
wanted to make sure it was a valid recommendation.” The big saving for patients
is in not having to hire an attorney or go to court.
Some doctors or clinic chains do not make anyone available to testify for patients
anyway! As we go to press, the district attorney of Butte County has said
that examination by a physician’s assistant will not suffice for a medical
cannabis recommendation. Several patients who got such recommendations from
Chico’s “Medi-Cann” clinic asked to be re-seen by the doctor, but their calls
to the clinic have not been returned. The clinic has reportedly folded.
I have now reviewed three cases of doctors under investigation by the Medical
Most recently, I was asked by Americans for Safe Access to review a case of
a doctor who was investigated for having recommended medical cannabis to a
young adult, whose mother complained to the Board that she found this inappropriate.
The doctor was ultimately charged with five “simple departures” and one “extreme
departure” from the standard of care, and was scheduled for a settlement conference
prior to a full hearing before an administrative law judge (ALJ).
I reviewed all of the patient’s records, and the MBC expert’s report and accusations.
As usual, the expert appeared to be a reasonably competent doctor, but completely
inexperienced in the actual standard of care appropriate for a limited medical-legal
I refuted the expert’s charges in a six-page declaration, which was presented
to the Board’s prosecutor and the ALJ. The issues raised in my declaration,
and excellent counsel by ASA attorney Joe Elford, resulted in acceptance by
the doctor of one “simple departure” (with no license restriction), so as to
avoid further legal costs.
Two factors make it more difficult to defend doctors investigated for recommending
1. Inadequate documentation of diagnosis.
2. Providing cannabis recommendations in connection with dispensaries or clinics
associated with dispensaries, as discussed above.
Although I am willing and able to try to defend doctors in both of these situations.
it will be much less expensive for the doctor to avoid these two pitfalls.
Choosing a Consultant
How does one choose a doctor for a medical cannabis consultation?
Here are some qualities that I would suggest patients look for:
1. A good track record: physicians with substantial experience and a high level
of comfort with medical cannabis.
2. Ability and willingness to testify in court for you should the patient’s
medical use of cannabis be questioned.
3. Willingness to confirm the legitimacy of the cannabis recommendation if
contacted by law enforcement (this may save the patient considerable expense
for fees for providing court testimony)
4. Adequate and accessible medical record keeping, including supporting documentation
from other providers. The physician who requires documentation of ongoing care
of the patient’s illness by his or her treating physician, has the easiest
time defending that patient to law enforcement.
What patients can do to help their doctors (as well as themselves):
1. Have a primary care provider with whom you consult at least once a year
regarding the serious illness or symptoms for which you use medical cannabis.
2. Bring records covering the last 12 months to your medical cannabis re-evaluation