Politics vs Pain

by Shannon Tan

Voters will decide Nov. 4 whether Florida becomes the 24 state — and the first in the South — to adopt a comprehensive program allowing medical marijuana to be purchased for a variety of medical conditions.

Twenty-three states and the District of Columbia have already legalized some form of the drug – mostly by going the legislative route. But efforts to get the Florida Legislature to place the measure on the ballot failed, leading personal-injury lawyer John Morgan to bankroll a constitutional amendment — Amendment 2 — to legalize medical marijuana.

Medical marijuana Amendment 2In June, Florida Governor Rick Scott signed a bill that legalizes a strain of marijuana known as “Charlotte’s Web” to treat conditions such as epilepsy, Lou Gehrig’s disease, and cancer. The Charlotte’s Web strain is high in cannabidiol (CBD) but low in tetrahydrocannabinol (THC), the compound that produces a high. It will only be sold through five licensed dispensaries in the state to authorized physicians.

Florida’s Department of Health is responsible for adopting regulations governing the cultivation, dispensing and medical use of the drug. Three nurseries have already filed petitions challenging the Department of Health’s proposed rules.

Experts say that those rules will likely set the groundwork for rules for the medical marijuana program if Amendment 2 is adopted, which requires 60 percent of the voters to agree to it.

“This is not a political issue. This is a medical issue,” said Morgan at a recent debate on the amendment at Stetson University College of Law in Gulfport, Fla. “If you trust your legislators to come back and [pass a law] later, vote ‘no.’ If you trust your doctors to do the right thing, vote ‘yes.’”

Ultimately, the biggest hurdle for Amendment 2 may be voter reluctance to write medical marijuana into the Florida Constitution.

“Amendment 2 is not about compassion for the suffering,” said former Florida Supreme Court Justice Kenneth Bell at the debate held at Stetson University College of Law. “A vote on amendment 2 is simply about whether it is a good idea to engrave this proposed language into our state constitution.”

 

Medical marijuana infographic from Stetson University

“You shouldn’t be screwing with the state constitution over little bitty things,” said Kirk S. Davis, BS ’79, JD ’82, law partner at Akerman LLP, and chair of his firm’s healthcare practice group. “It’s just another regulated substance. You don’t change the constitution over a little bitty thing.”

Whether the issue is medical or political, the National Cannabis Industry Association estimates medical marijuana will be a $785 million industry in the state.

The Issues

Initial polls found overwhelming support for the amendment, but more recent polls are showing a drastic decline in support for the legalization of medical marijuana.

The debate pits concerns for those suffering from debilitating pain against fears that legalizing medical marijuana would lead to drug abuse and increased crime. Supporters argue that medical marijuana is a safe, non-addictive and effective treatment for the seriously ill. Opponents contend that the amendment is overly broad and full of loopholes.

Both sides have scrutinized every word of the amendment, known as Amendment 2. The amendment would allow doctors to issue physician certifications to qualifying patients to receive medical marijuana. Cancer, glaucoma, HIV, AIDS, hepatitis C, ALS, Crohn’s disease, Parkinson’s disease, and multiple sclerosis are specifically listed as debilitating diseases that qualify.

Attorney John Morgan
Attorney John Morgan

Critics point out that the amendment is flawed because it also allows doctors to recommend marijuana use for “other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

Grady Judd, president of the Florida Sheriffs Association, wrote in an editorial that he was troubled that the amendment included “a truck-sized loophole in the definition of debilitating diseases” that changes the word disease into any minor condition “where the use of marijuana would likely outweigh the potential health risks of someone who claimed to be sick.”

“Can you possibly list in one bill every single use it might have? The answer is no. You have to put it in a catch-all,” refutes Adam Levine, MD, JD ’09, an attorney and adjunct professor at Stetson. “If you’re a doctor why would you risk your medical license? You are not going to give it to everyone. It’s going to be a limited group that will have access to medical marijuana.”

Another point of contention is that the amendment would give civil and criminal immunity to qualifying patients, caregivers, physicians, and medical marijuana treatment centers and their employees. Naysayers believe that this would absolve a wide range of people from liability if someone is harmed as a result of using medical marijuana. “This is the only medicine in the state of Florida that will be immune from all malpractice claims,” said State Rep. Cary Pigman.

Former Justice Kenneth Bell
Former Justice Kenneth Bell

Davis disagrees.

“If doctors are negligent in how they prescribe, or if doctors are doing something illegal like money laundering, they are not going to be immune for that,” he said.

As the medical community learns more about marijuana’s interaction with other drugs and its effects on patients with certain health conditions, doctors and pharmacists will have to be diligent to avoid liability when recommending and dispensing medical marijuana, said Jay Wolfson, Dr.P.H., JD ’93, and professor at the University of South Florida.

“The plaintiffs’ bar is always going to look for loopholes that could create liability,” said Wolfson, who has fielded calls from physicians worried that they could be held culpable for prescribing medical marijuana. “Charlotte’s Web [law] served as an excellent entrée to the prescription medical marijuana market,” said Wolfson. “This is an opportunity for Florida to take a leadership role in carefully understanding and incorporating scientific information from other states that allow prescription marijuana or allow recreational marijuana.”

Attorney Concerns

Even attorneys are concerned that they could be targeted. The Florida Bar Board of Governors recently adopted a policy not to prosecute Florida Bar members for misconduct if they advise clients “regarding the validity, scope, and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct the lawyer reasonably believes is permitted” in Florida as long as they also remind clients about federal law and policy. Marijuana possession remains illegal under federal law.

“One of the biggest ‘aha’ moments is when we issue a retainer letter to a client, the letter says federal law makes it illegal to be involved in marijuana,” said Davis.

The State Bar of Arizona issued a similar ethics opinion allowing lawyers to assist clients in complying with the state’s medical marijuana law. And Connecticut, Nevada and Colorado have revised lawyer conduct rules to permit attorneys to advise marijuana businesses that operate under state medical marijuana laws.

Opponents also emphasize that Amendment 2 only requires that caregivers be 21 years old to obtain and dispense medical marijuana for a qualifying patient. Seven former Florida Supreme Court justices wrote in a newspaper column that this provision “could be used as a legal shield to protect drug dealers from prosecution” because no medical expertise, training, or background checks will be required before caregivers administer the drug. Notably, other states such as Michigan and Rhode Island prohibit individuals with felony drug convictions from qualifying as caregivers.

Levine points out that the seriously ill often have transportation difficulties and are unable to obtain their own medications. “If you can’t have a caregiver, how are you supposed to have a debilitating medical condition and get [medical marijuana]?”

Shannon Tan is an in-house attorney in Tampa, Fla., and a graduate of Stetson University College of Law.