Arizona Medical Marijuana Medical Director:
What will you get sued for?
Can You Protect Yourself and Your Family from Financial Ruin?
Disclaimer: I am not an attorney. I am the business manager for Arizona Medical Marijuana Medical Directors: AZMMMD.com. This article is strictly my opinion. It is not, nor should it be construed as offering: Advice, Instructions, Solutions, or anything other than my opinion on a subject: a subject that is changing everyday!
When I first examined the issue of the potential liability of the Medical Director of an Arizona medical marijuana dispensary I thought the answer was simple. I mean since the start of legalized medical marijuana in California, not one dispensary has been sued by a patient! In fact the only lawsuits I could find were municipalities suing dispensaries.
Unfortunately, after reviewing the final rules and having conversations with the Arizona Department of Health Services (ADHS) I now know the issue of Medical Director liability is complicated and may contain insurmountable problems for medical directors!
When you first read the job of the Medical Director it appears to be similar to a vendor providing a system for dispensary application and subsequent operation; similar to inventory control or security. However, on closer inspection of the rules and discussions with the ADHS it is MUCH, MUCH more then that!
First ask yourself: Why did Arizona require a Medical Director’s involvement in the dispensary application and operation process, but California and Colorado DID NOT?
We know the reason from discussions with the ADHS. It is control. ADHS wants someone with a license at stake (the Medical Director) to be responsible for certain elements of the dispensary application and operation process. How is this accomplished? What follows is the text of the ADHS rules that specify the duties of the Medical Director or that have an affect the Medical Director.
- R9-17-310.A,2.e: Patient education and support, including:
i. Availability of different strains of marijuana and the purported effects of the different strains;
ii. Information about the purported effectiveness of various methods, forms, and routes of medical marijuana administration;
iii. Methods of tracking the effects on a qualifying patient of different strains and forms of marijuana; and
iv. Prohibition on the smoking of medical marijuana in public places;
- R9-17-310.A.3: Maintain copies of the policies and procedures at the dispensary and provide copies to the Department for review upon request;
- R9-17-312.E: A medical director shall not establish a physician-patient relationship with or write medical marijuana recommendations provide a written certification for medical marijuana for a qualifying patient.
- R9-17-312.D: A medical director shall provide oversight for the development and dissemination of:
- R9-17-314.A.5: A qualifying patient record is provided to the Department for review upon request;
- R9-17-322.C. The Department shall deny an application for a dispensary registration certificate or a renewal if . . . The Department determines that the dispensary did not implement the policies and procedures or comply with the statements provided to the Department with the dispensary’s application.
These sections of the ADHS rules make a Medical Director responsible for activities that if not performed properly could result in the closure of the Dispensary. The Medical Director is responsible not only for development of educational materials and training, but also the “oversight” of the specific sections of the Qualifying Patient Records. The Qualifying Patient Records may be examined for compliance at anytime by ADHS. If the records are found non-compliant:
- The dispensary could lose its license to operate. The Medical Director could be held responsible.
- The ADHS will probably refer this to the appropriate medical board for disciplinary action. It will probably be a minor sanction, but who knows?
- The dispensary owner will probably sue the Medical Director for lost revenue and/or business disruption. Easy to protect yourself from, but costly.
What is the biggest problem? A dispensary agent may knowingly or unknowingly dispenses medical marijuana to an unqualified person. If that were to happen, the dispensary agent will lose his/her dispensary agent license. R9-17-323.C.2. The Most Important Question: Is this activity Criminal? If it is who will the Attorney General of Arizona or County Attorneys prosecute? Will it be the dispensary agent, owners of the dispensary entity and/or the Medical Director???
I see this as the Medical Director’s biggest liability! Unless there is a law passed to specifically address this question. It is still illegal to sell marijuana in Arizona except when a licensed medical marijuana dispensary sells to a qualified patient who has a valid registry identification card. This is Arizona not California. It is not unreasonable to expect everyone involved with the dispensary to get arrested for selling medical marijuana to an unqualified person.
Jim Mc Cready
From my perspective, it seems far fetched to believe that law enforcement would hold a medical director criminally liable if a rogue employee in the dispensary is stealing marijuana and dealing to unqualified patients. The medical director had no intent to commit a crime nor any direct control over the employee’s actions. So it is difficult to see how the director can be held responsible for the employee’s criminal acts.
The article seems to imply that DHS created the medical director position partially to have a professionally licensed individual to scapegoat if something goes wrong at the dispensary. I certainly hope this isn’t the case.
Jason E. Gittman, MD, FCCP