The Arizona Department of Health Services’ January 31, 2011, second draft of the rules require that every Arizona medical marijuana dispensary have a medical director on the premises or on call. Proposition 203 contains no such requirement. Why DHS put the medical director requirement in the rules is beyond me. I do not understand the purpose of the medical director unless it is to increase the cost of the products sold by the dispensary. Most doctors are not willing to act as a medical director for a pot clinic and of those that are, not many are willing to do so for free.
I wonder if any doctor will actually take the position as medical director of an Arizona medical marijuana dispensary. The big unknown at this time is whether a doctor who is the medical director of a dispensary can purchase malpractice insurance and products liability insurance. I’m guessing that medical malpractice insurance would not cover the doctor because the doctor’s activities as a medical director do not involve the practice of medicine. The medical director does not see patients. The rules state,”A medical director shall not establish a physician-patient relationship with . . . a qualifying patient.” If the medical director cannot purchase appropriate insurance, why would any doctor be the medical director of an Arizona medical marijuana dispensary?
We all know that litigators love to sue anybody within 100 miles of an incident. Consider what might happen if a patient were to buy a THC laced brownie that caused permanent bodily harm or that killed the patient. Who do you think will be sued? I submit that the defendants in the lawsuit will be the dispensary, the medical director, the infusion company that made the brownie, the cook who actually cooked the brownie and possibly the officers and directors who failed to adopt an product inspection system that would have detected the harmful brownie. The plaintiff may sue the medical director for medical malpractice and for products liability. Can the medical director purchase malpractice insurance and products liability insurance?
I am not a litigator. I don’t sue people. Maybe I am completely off base. If I am wrong, please let me know. I’d love to publish an article from somebody in the know that can explain the potential liability of the medical director and what types of insurance the medical director will need and if it is possible for the medical director and/or the dispensary to purchase the insurance.
Suggestion to Arizona Department of Health Services: You have a medical director. If you think dispensaries should have a medical director why not require your medical director to be the medical director of all dispensaries and charge each dispensary $500 a month? Your medical director can then prepare the literature and patient brochures the medical director thinks is appropriate and DHS can sell them to the dispensaries for distribution to patients.
An Arizona Physician’s Comments to the Above Article
I was intrigued by your recent post. I am not a attorney, but as a physician with my own medical-legal consulting firm, I do not see much risk of a dispensary’s medical director being sued for medical malpractice. The primary reason for this is that there is no physician-patient relationship – not even contact – between a dispensary customer and the medical director, so by definition, there can be no medical malpractice.
Given the scenario painted in your posting about a brownie that caused harm to the patient, how has the medical director not followed the applicable standard of care? Of course, there is no medical standard of care in this situation and you would find no medical expert to testify that a physician has a duty to somehow test brownies infused with marijuana. In fact, it is my understanding that neither the recommending physician nor the medical director selects the form of marijuana that the patient will use (which I feel is a mistake). So, whether the marijuana is smoked, ingested, or applied as a tincture, it will be the patient’s choice.
The product liability issue you mention is, of course, a different matter, and if a dispensary customer is somehow injured by the product, I’m sure a plaintiff’s attorney will undoubtedly sue everyone connected with a dispensary. But I am also certain that dispensaries will be able to purchase product liability insurance that will also cover the medical director. That having been said, it is very difficult for anyone to be permanently harmed or even OD on marijuana. And, if a patient is harmed by marijuana because there was some underlying contraindication to it having been recommended in the first place, then that would be malpractice and it would be the recommending physician who could be sued for not following the appropriate standard of care.
Lastly, with respect to your questioning the wisdom or necessity of requiring dispensaries to have a medical director, I direct you to this page of DHS Director’s Blog which provides an example of why medical director oversight may be beneficial: http://directorsblog.health.azdhs.gov/?p=1125.
Jason E. Gittman, MD, FCCP
Internal Medicine Primary Care Specialists, PLLC
Physicians’ Medical Legal Consultants
Update: Check back soon. I’ve found an insurance agency that has substantial experience insuring all aspects of the medical marijuana industry, including doctors and grow facilities. It appears that all appropriate types of commercial insurance can be purchased to insure dispensaries and medical directors. I will put up more info not later than February 20, 2011.