‘Bona fide’ Doctor/Patient Relationship Defended In Michigan Medical Cannabis Case
Traverse City Defense Attorney Shawn Worden successfully defended the bona fide dr/pt relationship in the case of Robert Ward in Antrim Co Court 9-17-12. Mr. Ward had been arrested for felony manufacturing of marijuana. Mr. Ward was arrested after 23 plants were discovered in a secured enclosure on his property. The court ruled the plants were secured, so the prosecution attacked Mr. Ward’s card by questioning the bona fide doctor patient relationship.
The case revolved around Dr. Robert Townsend (Dr. Bob), the certifying physician. Dr. Townsend was qualified as an expert in Internal Medicine, Cannabis Medicine, and the bona fide Dr/Pt relationship at the onset of his testimony. He was then questioned by Attorney Worden as to his visits with Mr. Ward, the records he reviewed, his follow up procedures, and the criteria for certification, the elements of a bona fide relationship, and the methods used to determine whether the patient was growing a ‘sufficient amount’ of marijuana to meet his needs to qualify for ‘medical use’.
Key points of Dr. Townsend’s testimony in this case included the following:
- Dr. Townsend began treating narcotic addiction with suboxone in 2006, long before the MMMA passed. He began to use marijuana with his patients as a direct extension of this treatment, as the indications for medical marijuana matched the symptoms of narcotic withdrawal in his patients. In addition to marijuana certification, Dr. Townsend continues to treat narcotic addiction and chronic pain in his medical clinics demonstrating his practice is diversified and not limited to making recommendations under the MMMA. Dr. Townsend meets with EVERY patient. There are no through the mail certifications where the patient and physician do not meet.
- Records are required to establish the diagnosis on each of Dr. Townsend’s patients. This is standard medical practice in a ‘consulting practice’. If patients do not have medical records they are required to get them and not certified (there are some exceptions, but they are clearly exceptions in extraordinary circumstances). A key measure of ‘enough’ medical records is that an outside physician reviewing the same records reviewed by Dr. Townsend would reach the same conclusions about the patient’s medical conditions as Dr. Townsend did (the results are reproducible and stand up to peer review)
- Free follow up to reassess the patient is offered of all patients, and approximately 50% take advantage of that follow up visit, demonstrating an effort to re-assess the therapy over time, rather than just having them come in for re-certification in a year.
- The patient had 23 plants as a caregiver with 2 patients. This was well below the 36 presumed to me ‘medical use’ under the law. There is no need to justify this amount as by law it is ‘presumed’ medical use. Questions were asked about the amounts needed for different methods of ingestion from an occasional puff on a ‘one hitter’ to medibles to oils, as well as the differences in pharmacology and duration of effect between smoking/vaporization and medibles.
- The patients are counseled at the time of visits on broad categories of cannabis (indica vs sativa) and that MOST patients can control their symptoms on 1 oz or less per week of cannabis (to give a rough measure of an appropriate amount). The fact the federal gov issues 8.3 oz of marijuana in tins of 300 cigarettes also gives evidence to the appropriateness of the state limits of 12 plants and 2.5 oz of usable MMJ per patient.
The prosecution then questioned Dr. Townsend. Key features of the line of questioning used are
- There is no determination of the potency of marijuana, the amount, frequency of use, method of use, and total amount used per month. Dr. Townsend responded with the schedule 1 status of cannabis under state and federal law. What the prosecutor was asking, according to Dr. Townsend, was a formal prescription for cannabis (type, amount, frequency, duration). This would be a violation of federal and state law on the part of the physician.
- What other controlled substance is left to the patient to fully determine amount and use? Dr. Townsend cited the example of ‘Lomotil’ a controlled substance that is purely used ‘as needed’ in patient determined amounts.
- Unfortunately, the patient’s chart, which was part of the original packet reviewed by Dr. Townsend prior to the trial, was NOT included in the trial packet. The prosecutor hammered at this for awhile, trying to imply the visits were not recorded or formal visits.
- Was the amount of marijuana produced by Mr. Ward’s 23 plants ‘more than needed’ for medical use. Dr. Townsend explained that under the MMMA, 12 plants and 2.5oz per patient was presumed medical use, and did NOT need to be justified further. Only if the patient exceeded the limits with an example of a cancer patient needing 15 plants, did the amount need to be justified. If the prosecutor wanted to try and prove Mr. Ward had more than he needed, he was welcome to make his case, but the law presumes medical use at the levels involved and that is quite a burden of proof.
When it was said and done the judge made his ruling. There are 3 elements to prove, a bona fide relationship existed, the patient had a qualifying condition (qualified by the physician according to the MMMA), and that the amount was appropriate for medical use.
- Due to Mr. Ward’s obvious injuries and ample medical records, he was clearly qualified under the law to get a card. This was obvious even to the court.
- Although the law was ‘badly written’ 12 plants are allowed per patient (with no mention of the plants being 6 inches or 6 feet tall) so the patient was within his limits for medical use.
- A bona fide Dr/Pt relationship existed, as it was not a visit by a ‘hotel or internet’ doctor, the doctor did formally interact with the patient, required records to support the diagnosis, and the court agreed with ‘what was being done by Dr. Townsend’ though they didn’t like his CV as it didn’t specifically list the locations of his clinics and he should have had his chart with him.
- There are MANY examples of consultation visits for specific problems by non-primary care doctors, and literally MILLIONS of ‘take as needed’ medications. The lack of specific directions for use, potency, amounts, etc is not an issue.
The court further indicated what it DIDN’T want to see. Listing a diagnosis of exclusion without objective evidence like ‘fibromyalgia’. Large numbers of tie dyed T-Shirts with MiNorml and pot leaves. Lack of formal follow up with documentation. Certifications as the only services offered by ‘clinics’.
Overall a very positive court experience according to Dr. Townsend. Though the court misinterpreted his comments about meeting Mr. Ward at least 5 times at rallies and club meetings over the last several years (the court seemed to think these informal meetings were unrecorded ‘follow up visits’ when they simply demonstrated a familiarity with the patient and his condition over time), and characterized his testimony as ‘long on substance and short on procedure’ due to the lack of the chart and the CV, the outcome of the case was a clear message.
- Records are required to objectively support the diagnosis.
- A formal meeting conducted as any other office visit with a physician is required.
- Formal follow up is required.
One change to procedure for Dr. Townsend as a result of this successful hearing is that a nursing phone call to patients will be made and a chart record maintained at the 6 month mark in the certification to document follow up even for those patients that do not take advantage of the free follow up they are offered and encouraged to make use of at the time of certification. And don’t assume because the chart is in the prep packet that it will be there at trial, bring it from the office.
Article From Dr. Bob And The Certification Crew and is republished with special permission