Categories: Health Care, Health Law, Medical Malpractice Defense, New Legislation,

As many states begin to allow recreational as well as medical uses for marijuana, the Florida Supreme Court may be voting on a proposed constitutional amendment that would make it legal for doctors to prescribe patients marijuana for medicinal purposes. At this point, justices are set to give their opinion regarding the ballot initiative, before voters will see it this year. Medical malpractice defense lawyers in Florida say that, if passed, the amendment would open up new possibilities, as well as liability issues, for doctors across the state. 

At issue is not so much the concept of medical marijuana as is the scope of the amendment, state legislators and lawyers say. The ballot title, and its summary that will be printed for voters to read, may not give a full indication of what the amendment will cover. The language, written by UNITED FOR CARE: People United for Medical Marijuana, states that allowing medical marijuana to be prescribed will benefit people with “debilitating diseases.” However, people who do not support the amendment report that in reality, doctors will be able to prescribe marijuana on a much wider scope. 

The Florida Division of Elections reports that it has verified over 136,000 of the 683,149 signatures required to place the measure on the ballot for 2014. Along with obtaining the remaining signatures, the fate of the measure rests in the hands of the five members of the state Supreme Court. If they decide to approve the amendment, medical marijuana could be moving forward in Florida. Right now, the conversation will be focused on determining what the difference is between “debilitating diseases,” as the ballot summary reads, and “debilitating medical conditions,” which is the term in the amendment. 

Those who are backing the proposed amendment say that the language places the onus on Florida’s doctors to properly evaluate whether medical marijuana is the best course of action, and weigh the benefits versus the risks for the good of the patient. The amendment is “very much focused on physician decision … [so] a list [of conditions] alone would not be adequate,” said Jon Mills, representative for amendment supporters. 

Allowing doctors to evaluate their patients’ needs in considered marijuana treatment gives them freedom to treat as they see fit. But medical malpractice defense attorneys in Florida are worried that this freedom will also open doctors up to medical malpractice lawsuits. 

Marijuana, even when used to reduce symptoms of debilitating pain or illness, can have adverse side effects such as altered mental state and impaired decision-making. If doctors will be able to prescribe the drug to patients, they will have to issue standard disclosures, and be sure that the patients understand to use the medication with care. But even if the doctor issues a warning, it may not be enough to protect him or her from the repercussions. If a patient reacts badly to marijuana, or acts irresponsibly and injures someone, the patient or another involved party may hold the doctor responsible. 

These concerns will have to be evaluated further, once the state Supreme Court makes its decision. At Lubell Rosen, our medical malpractice defense attorneys will be keeping an eye on the coming decision, and offer representation to doctors who may need further clarification or protection.