Confusion continues regarding whether Ohio doctors can recommend medical marijuana. 

Earlier this month, the Ohio State Medical Board provided “guidance” to doctors relating to medical marijuana, stating that they should not recommend medical marijuana to patients until the Board finalizes its rules to certify doctors to make those recommendations — a process that could take until September 2017.

According to that guidance:

“A physician is not permitted to issue a state of Ohio approved written recommendation to use medical marijuana until the physician has obtained a certificate to recommend from the State Medical Board of Ohio. Per House Bill 523, the rules outlining the standards and process needed to obtain such a certificate to recommend will be developed no later than September 8, 2017.”

State Senator David Burke felt the “guidance” was unnecessary, telling Cleveland.com, “Willing physicians are in the free and clear[.]” He also noted that Ohio doctors will have to treat marijuana as a controlled substance under state law. “The affirmative defense was meant to allow for a quick transition for folks who need this product sooner than later[,]” he said.

The Gongwer News Service reported, however, that at yesterday’s meeting of the State Medical Board, member Robert Giacalone said that “the Medical Board is in no way prohibiting the recommendation of medical marijuana now that HB 523 is effective.” He further said:

“If Ohio physicians wish to recommend medical marijuana before the rules are in place, we strongly recommend that they contact a private attorney because the legislation is not crystal clear and could be interpreted as providing conflicting instructions to physicians.”

Giacalone’s statement appears to be a 180 degree turn from the “guidance” offered by the Board earlier this month, which did explicitly say that Ohio physicians were not permitted to recommend medical marijuana prior to being certified to do so by the State Medical Board. That being said, Giacalone is absolutely correct that HB 523 is not crystal clear when it comes to physician discipline for recommending medical marijuana.

Under R.C. 4731.30(B)(1), for instance, an Ohio physician seeking to recommend treatment with medical marijuana “shall” apply to the State Medical Board for a certificate to recommend — however, this section does not explicitly state that physicians must apply for certification before they recommend medical marijuana.  Furthermore, subsection (C)(1) is clear that a “physician who holds a certificate to recommend” may recommend medical marijuana to patients, but this section does not state that only physicians holding this certificate can recommend medical marijuana.  And, under R.C. 4731.22(B)(49), a physician may be disciplined for “failing to comply with the requirements of section 4731.30 of the Revised Code or rules adopted under section 4731.301 of the Revised Code when recommending treatment with medical marijuana.”

In other words, if R.C. 4731.30(B)(1) and (C)(1) require physicians to be certified before recommending medical marijuana, then R.C. 4731.22(B)(49) could allow for that physician to be disciplined if he or she recommends marijuana prior to being certified.

Under R.C. 4731.30(H), though, a physician is immune from civil liability and may not be disciplined by the State Medical Board or Board of Pharmacy (or be prosecuted criminally) for doing any of the following:

1. Advising a patient, patient representative, or caregiver about the benefits and risks of medical marijuana to treat a qualifying medical condition;
2. Recommending that a patient use medical marijuana to treat or alleviate the condition; or
3. Monitoring a patient’s treatment with medical marijuana.

On its face, this subsection does grants immunity to all physicians recommending medical marijuana, regardless of whether that physician has been previously certified — and, in fact, it may render the certification requirement practically meaningless. Thus, there appears to be a direct conflict between R.C. 4731.30(H) and R.C. 4731.30(B)(1) and (C)(1).

Another interesting question is whether R.C. 4731.22(B)(49) applies to physicians who simply advise patients about the risks/benefits of medical marijuana or monitor the patient’s treatment, as the law does not explicitly call for discipline against physicians for engaging in those activities, with or without a certificate from the State Medical Board.

And as if the above analysis wasn’t confusing enough, it gets even more convoluted when one considers the Ninth Circuit case of Conant, et al. V. Walters, et al., 309 F.3d 629 (9th Cir. 2002). In that case, a group of physicians and patients argued that interfering with physicians from recommending medical marijuana violated the First Amendment — and they won an injunction against the federal government. To my knowledge, Conant has not been adopted by the 6th Circuit or any Ohio state court — but the First Amendment implications of Ohio’s new medical marijuana law cannot be ignored.

At the end of the day, there will likely be Ohio physicians issuing written recommendations to patients before the State Medical Board certifies them to do so. If they find themselves subject to disciplinary proceedings, they will at least have plausible arguments that R.C. 4731.30(H) and the First Amendment prevent discipline from being imposed.