Physicians beware: marijuana may complicate your professional life
I earlier wrote about marijuana, the practice of medicine, and the Oregon Medical Board, cautioning physicians that regardless of state law, marijuana is still a Schedule I banned substance under federal law, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose under federal law. Consequently, I cautioned physicians not to become complacent when recommending marijuana for medical use and not to confuse compliance with the Oregon Medical Marijuana Program (OMMP) with meeting the applicable standard of care.
Admittedly, under former Justice Department policy, federal law has been lightly enforced and in those states where marijuana is “legal,” a lax attitude prevails among the general public. For those of us that possess professional licenses, however, we are often held to higher standards and this seems to be particularly true for Oregon physicians, whether they are recommending marijuana for medical use, or consuming marijuana recreationally. This point was hammered home earlier this month when I represented two physicians during their Investigative Committee (IC) interviews at the Oregon Medical Board. One physician had recommended marijuana for medical use. Although he had strictly complied with the Oregon Medical Marijuana Program (OMMP), the Medical Board’s concern was the standard of care. The other physician had never recommended marijuana for medical use, but he had admitted to personal use, and not always in a state where it was legal under state law. Both physicians were honest, forthcoming and well-intentioned, but marijuana had complicated their professional lives, something we all want to avoid.
Physicians, the times they are a changing: the new DEA
The times are not getting any easier for physicians recommending or using marijuana. New Attorney General Jeff Sessions, who heads the Drug Enforcement Administration (DEA), has long opposed the legalization of recreational marijuana and yesterday, Sean Spicer, the President’s press secretary, explained during his daily press briefing that under the new administration we can expect “greater enforcement” of federal law banning the recreational use of marijuana even in those states where recreational use is “lawful” under state law. I suspect the Oregon Medical Board was not surprised. During a side conversation earlier this month, a Medical Board investigator commented this might happen under the new administration and, a few weeks later, it did. I think it is safe to assume that in this new era, the Oregon Medical Board will have still greater concerns about the recreational use of marijuana by physicians in any state, including Oregon, where it is “legal.”
Appeal and cross-appeal
This is a case I took up on appeal for another lawyer, and won a reversal – the Court of Appeals affirmed the trial court’s rulings in our favor and reversed the trial court’s rulings against us, a complete victory for our clients.
I represented the Knudsens, who had been sued by the Grimstads over an inheritance. Three key legal claims were at issue. The trial court awarded the Grimstads part of the Knudsens’ inheritance under claims of (a) unjust enrichment and (b) money had and received, but denied the Grimstads’ claim of (c) intentional interference with prospective economic advantage.
Both parties appealed, resulting in an appeal and cross-appeal. On June 9, 2015, after extensive legal briefing, the appeal and cross-appeal was argued to the Oregon Court of Appeals.
The Court of Appeals’ opinion
One and one-half years after oral argument, the Court of Appeals issued a complex 29-page opinion, ruling in my clients favor and against the Grimstads on all claims. See Grimstad v. Knudsen, 283 Or App 28 (December 21, 2016). At the end of its opinion, the Court of Appeals favorably concluded as follows:
“In sum, we conclude that the trial court erred in concluding that the [Grimstads] proved a claim for unjust enrichment, because [the Grimstads] failed to show that they had any legal or equitable interest in the proceeds of the sale of the [real estate]. For that same reason, the trial court erred in concluding that [the Grimstads] proved their claim of money had and received. The trial court therefore erred in granting plaintiffs relief on those claims. On cross-appeal, [the Grimstads] failed to put forward evidence to create any genuine issue of material fact with respect to the improper means or purpose element of their intentional interference with prospective economic advantage claim. The trial court therefore did not err in granting [the Knudsens’] motion for summary judgment [on that claim].”
See Grimstad v. Knudsen, 283 Or App 28, 58 (December 21, 2016) (reversing and remanding on appeal; affirming on cross-appeal).
Remand to the Washington County Circuit Court
This appeal and cross-appeal will now be remanded (returned) to the trial court for entry of a new judgment fully in my clients’ favor. As an aside, I predict this case and its opinion will become the new “name case” or “lead opinion” for claims of intentional interference with prospective economic advantage. Time will tell.
Is there a new leniency in federal sentencing for prescription drug crimes?
In an effort to follow Drug Enforcement Administration (DEA) prosecutions, convictions, and sentencings around the country, I read Google alerts weekly, sometimes daily. In recent months, I have been struck by relatively lenient sentences handed down by several different District Courts when sentencing physicians pleading to multiple counts of drug diversion (i.e., prescription drug crimes). I have defended physicians and pharmacists facing prescription drug charges long enough to recognize trends. Thus far, I haven’t commented, but today I am prompted to do so because I sense there may be a new trend, or new opportunities, for those that are paying attention. Here is one recent example:
West Virginia physician was sentenced in federal District Court to a year and a day in jail after pleading guilty to seven felonies for illegal distribution of oxycodone. The sentence included an $18,200 penalty, and required the physician surrender her medical license, but for those who are unaware of typical sentences for federal drug charges, this sentence is lenient! According to news reports, this physician had both prior legal and disciplinary history, was charged with a 100-count indictment alleging that she and two coworkers wrote 157 illegal prescriptions for oxycodone, oxymorphone, methadone, and methylphenidate, and the physician authorized pre-signed, blank prescription forms, for use by her staff. I am aware of much harsher sentences on what would appear to be much “cleaner” records.
A new trend or opportunity?
I haven’t done the research, and do not presently have the case to justify the time and expense, but for those physicians (and their lawyers) currently preparing to plead and be sentenced,a six-month review of recent federal District Court sentences involving drug diversion pleas around the country may be a worthy endeavor. A little research will turn up other similar news reports of relatively lenient sentences, suggesting better results for physicians sentenced for prescription drug crimes than I have seen for a while. There is perhaps something to be learned.
To report or not report: Discipline versus a Letter of Appreciation
Reporting troubling information to your licensing Board and navigating the subsequent investigation is seldom one’s first choice, but it can be done well, and it may spare you from discipline later. You might even discover that your licensing Board is your friend and ally. To illustrate this discussion, I am using two cases involving pharmacists and the Oregon Board of Pharmacy, but the same principle can apply to nurses before the Oregon State Board of Nursing and physicians before the Oregon Medical Board.
Two pharmacy cases that make the point
In one case, the pharmacist in charge (PIC) was managing a pharmacy technician whose qualifications to hold her technician’s license were suspect. The PIC did not report the technician, believing the Board of Pharmacy “would not have done anything” to help, since the Board licensed her in the first place. As he would later learn, however, had he made an appropriate report to the Board, he would have satisfied his professional obligation to report, while simultaneously gaining the Board’s participation in the problem, relieving him of much responsibility. A simple report to the Board would have spared him the grief that followed as he sought to manage a problem he could not manage, and should have instead reported. In the end, his failure to report the technician, and to work collaboratively with his licensing Board, proved a costly lesson: discipline.
By way of comparison, in an another case, the PIC discovered an ongoing drug theft that occurred on his watch, a drug theft that perhaps should have been discovered sooner. Nonetheless, his drug inventory reconciliations uncovered the drug loss and, through his extraordinary efforts, he identified the technician responsible for the drug theft. His reports to the Oregon Board of Pharmacy and the Drug Enforcement Administration (DEA) were timely, and his participation with the Board during the investigation was exemplary. In the end, he was not disciplined, but instead received a letter of appreciation from the Oregon Board of Pharmacy.
The moral of the story
The crucial point not to be missed is that these two pharmacists could have reversed their fortunes (good or bad) by simply reversing their decisions to report to the Board (or not to report). I can assure you that the pharmacist that reported to the Board in the second example above (involving the drug theft), and then experienced the benefit of reporting, will do so again, should the need arise. As for the other pharmacist, the one that chose not to report his technician’s lack of qualifications, and faced the consequences, next time, he too will report to the Board.
This is a case I took up on appeal for another lawyer, and won. In this case, the Oregon Medical Board revoked a physician’s medical license by missapplication of complex procedural rules. In a unanimous decision, however, the Oregon Court of Appeals reversed the Oregon Medical Board in my client’s favor. See Yankee v. Oregon Medical Board, 280 Or App 1 (August 3, 2016) (remanding for further proceedings).
Appeals against the Oregon Medical Board are difficult to win
On appeal to the Oregon Court of Appeals, I argued that the Oregon Medical Board erred when it denied my client’s motion to reschedule his hearing, and revoked his medical license, without first holding a hearing on his motion before an Administrative Law Judge (ALJ), as required by administrative rule. The Oregon Court of Appeals agreed, and reversed the Oregon Medical Board, remanding the case for further proceedings.
This appeal was won on procedural grounds and, as experienced appellate lawyers know, this type of appeal can be difficult to win. I argued this case to the Oregon Court of Appeals in February of 2015, but the court did not decide the case until August of 2016, 18 months later, suggesting that the Court of Appeals needed significant time to decide this troubling case.
The Court of Appeals’ ruling: The Oregon Medical Board must follow prescribed procedure
The holding in this case is simple: The Oregon Medical Board must follow “prescribed procedure” when seeking to revoke a physician’s license:
“Having concluded that the [Oregon Medical] board procedurally erred when it did not provide [Dr. Yankee] with a hearing before the ALJ, we must remand this matter for further proceedings if “the fairness of the proceedings or the correctness of the action may have been impaired” by that “failure to follow prescribed procedure.” ORS 183.482(7). Here, the fairness of the proceedings may have been impaired. [Dr. Yankee] was entitled to have a hearing before a neutral ALJ [Administrative Law Judge] on the reasons for his not appearing once the [Oregon Medical] board disputed the facts articulated by [Dr. Yankee]. Instead, the [Oregon Medical] board resolved those disputed factual issues in its own favor. Accordingly, we reverse and remand for further proceedings.”
See Yankee v. Oregon Medical Board, 280 Or App 1, 6 (August 3, 2016) (underscore added).
Under federal law, marijuana is a Schedule I banned substance, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose. In recent years, however, a number of states, including Oregon, have “legalized” marijuana for medical purposes (and in fewer states, for recreational use). For a number of reasons, the Drug Enforcement Administration (DEA) has abandoned the enforcement of the federal drug laws as they pertain to the medical and recreational use of marijuana in those states that have declared it legal. Based upon my experience, however, I urge you not to become complacent when recommending or approving marijuana for medical use. Here’s why.
The Oregon Health Authority versus the Oregon Medical Board or: “it’s still the practice of medicine, dude.”
The Oregon Health Authority (OHA) sets out the statutes and rules applicable to the Oregon Medical Marijuana Program (OMMP) and further offers a wealth of relevant information and advice. See, e.g., http://public.health.oregon.gov/DiseasesConditions/ChronicDisease/MedicalMarijuanaProgram/Pages/legal.aspx. Be forewarned, however, that compliance with the OMMP will not necessarily satisfy the Oregon Medical Board when there is a complaint or discrepancy involving professional protocols or the standard of care. As one investigator recently put it, “it’s still the practice of medicine, dude.” In other words, it may be legal, but more may be required of you.
Do not confuse “legality” with the standard of care
The State of Oregon may have legalized marijuana, but the Oregon Medical Board regulates the practice of medicine and is particularly concerned with how you meet the applicable standard of care and/or other professional protocols or commitments that may apply in any given situation. Stated differently, in Oregon, the OMMP establishes the circumstances under which medical marijuana is legal, but the medical profession adds another layer – the standard of care – and it is the Oregon Medical Board that will ensure that the standard of care is met. The fact that you may be recommending medical marijuana consistent with the OMMP will not much satisfy the Oregon Medical Board if the standard of care requires more.
I recently discussed a few of the many mandatory reporting obligations imposed on physicians and nurses. Today I want to discuss the “dreaded yes questions.”
A dreaded yes question is a question you want to answer “no,” but truthfulness requires that you answer “yes,” hence the question is dreaded.
For example, last week, a physician asked me how to answer a boilerplate question found on many residency applications, and a nurse asked me to help her report a drug and alcohol-related arrest on her renewal application. The question on the residency application asks, “Is there anything in your past history that would limit your ability to be licensed or would limit your ability to receive hospital privileges?” To answer this question, one would need to know what kind of things limit the ability to be licensed, or to gain hospital privileges. Without relevant experience, this question will be difficult to answer. The renewal question for the nurse, involving drug and alcohol-related arrest and her renewal application, was much more straight forward.
License renewal applications and DUII arrests and convictions
I am often asked about the need to report driving under the influence of intoxicants (drunk driving or DUII) arrests and convictions, and less often about the need to report a drunk driving arrest that did not result in a conviction. One recent case illustrates the complexity of the various mandatory reporting requirements. I represented a physician who had been arrested, but was not convicted, for driving under the influence of intoxicants. The physician was licensed in three states. The phrasing of the question on the renewal applications was all important, and it differed state-by-state. One state required a conviction to be reported, but not a mere arrest. Another state required that the arrest be reported, regardless of whether there had been a conviction. The third state was a close-call case.
What to do with close-call questions on license renewal applications
Occasionally, the facts and circumstances, combined with the phrasing of the question on the renewal application, will make the answer too close to call with desired certainty. Is these cases, an experienced healthcare defense attorney can advise you on the risks of not reporting, versus the benefits of reporting to ensure compliance with your mandatory reporting requirements. An experienced healthcare defense attorney can also do something you should not, and that is to make a call to the right person at your licensing Board, in an effort to learn more, but without disclosing your name.
One final caveat about the failure to report
In my experience, those choosing not to report a reportable incident deeply regret that decision once the incident comes to the attention of their licensing Board. The failure to report simply adds another layer to the investigation and exposes you to additional scrutiny because your veracity is now in question.
As a licensed healthcare provider, you have mandatory reporting requirements
Upon your initial application for licensure, you will be required to answer a series of questions designed to disclose past conduct that may have an adverse impact on your ability to practice your profession. Thereafter, you have a continuing obligation to report specified incidents to your licensing Board, often within 10 days of the occurrence of the incident, or at the time of your license renewal.
The reporting laws are complex and nuanced. Although it is tempting to rationalize why the incident in question need not be reported, this is often a mistake, because the failure to report a reportable incident is itself a violation. Before you report, or decide not to report, you are encouraged to seek experienced legal counsel, to determine first if a report is in fact and law required to be made, and second, how best to make the report to minimize any adverse impact on you or your license.
For physicians, incidents subject to mandatory reporting include, but are not limited to, the following:
- Criminal convictions or felony arrests;
- Discipline by other state licensing boards;
- Loss of privileges, withdrawal, resignation, or limitation of practice; and
- Medical incompetence, unprofessional or dishonorable conduct, or physical incapacity
To get started, physicians should consult the following reporting statutes and agency rule:
For nurses, incidents subject to mandatory reporting include, but are not limited to, the following:
- A nurse imposter;
- Practicing nursing without a license;
- Arrest or conviction of a crime which relates adversely to the practice of nursing or the ability to safely practice nursing;
- Dismissal from employment due to unsafe practice or conduct derogatory to the standards of nursing;
- Client abuse;
- Conduct derogatory to the standards of nursing as defined;
- Any violation of a disciplinary sanction imposed on the licensee by the Board of Nursing;
- Failure of a nurse not licensed in Oregon and hired to meet a temporary staffing shortage to apply for Oregon licensure by the day the nurse is placed on staff;
- Substance abuse as defined in ORS 678.111(e); and
- Any other cause for discipline as defined in ORS 678.111.
To get stated, RNs and LPNs should consult the following chapter:
Mandatory reporting can be assisted by a healthcare defense attorney
As you can see, mandatory reporting can present complicated questions. I am frequently asked, “do I have the report this, and if so, how soon?” My initial reaction is usually accurate, but in almost all cases, I will look it up myself. The reason I look it up is that as a healthcare defense attorney, I represent too many professions (physicians, pharmacists, nurses, acupuncturists, etc.), and there are too many reporting requirements to commit it all to memory. Also, in close-call cases, accurate reporting requires some analysis, or you risk under-reporting or over-reporting. Under reporting (i.e., failing to report) exposes you to discipline and other problems with your licensing Board or other important institutions, while over-reporting (i.e., unnecessary reporting) exposes you to a process most licensed professionals prefer to avoid. So again, before you report (or decide not to), you are encouraged to seek competent legal counsel, to determine first if a report is in fact and law required to be made, and second, how best to make the report to minimize any adverse impact on you or your license.
This year marks ten years since the United States Supreme Court issued its opinion in the case of Gonzales v. Oregon (406 KB), decided January 17, 2006. In this case, the United States Supreme Court affirmed the Ninth Circuit Court of Appeals’ opinion (263 KB), which had earlier affirmed the federal District Court’s opinion (1.78 MB) enjoining former United States Attorney General John Ashcroft from prosecuting Oregon physicians and pharmacists.
Against the DEA, healthcare defense attorney seeks injunction
Normally, as a healthcare defense attorney, someone else, for example, a licensing Board or the Drug Enforcement Administration (DEA), initiates the litigation. In this case, however, in order to protect physicians and pharmacists throughout the State of Oregon, it was necessary that I become the plaintiffs’ attorney. I sued former Attorney General John Ashcroft and the DEA in federal District Court on behalf of a physician and a pharmacist who were threatened with federal criminal investigations, prosecutions, fines, and imprisonment. See Complaint (1.24 MB).
Important victory for physicians and pharmacists everywhere
The opinion by the United States Supreme Court is an important victory for physicians, pharmacists, and patients everywhere, because it establishes the precedent that the United States Attorney General may not define the scope of legitimate medical practice, and that the States, not the federal government, regulate the practice of medicine. Justice Kennedy, writing for the majority of the Court, concluded his 28 page opinion writing:
“The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it. Gonzales v. Oregon (406 KB)(Kennedy, J.)”
This victory stands today – the injunction against the DEA is still in effect! This case is discussed in more detail on the appellate practice page of this website.
Pharmacist dispensed without a “legitimate medical purpose”
A Florida pharmacist was sentenced last week to 24 years in prison on multiple charges that include dispensing oxycodone without a “legitimate medical purpose.” The evidence against the pharmacist was summarized as follows: The pharmacist (1) accepted fake prescriptions from (2) customers who came in groups (3) from far distances to get (4) oxycodone. The prescriptions were written by (5) known suspect prescribers and (6) the patients paid a premium, in cash, for the oxycodone. In other words, the pharmacist failed to screen for the “red flags” of drug diversion. Here is a link to the story: http://www.pharmacytimes.com/news/pharmacist-to-serve-24-years-in-prison-for-illegal-oxycodone-dispensing.
The Oregon Board of Pharmacy expects pharmacists to screen for “red flags”
I can assure you from my work as a healthcare defense attorney defending physicians, pharmacists, and prescribing nurses against prescription drug charges by the Drug Enforcement Administration (DEA) that screening for red flags is expected of all prescribing and dispensing practitioners. Agreeable or not, screening for red flags is also important because whether a pharmacist screened for red flags will be considered by the Oregon Board of Pharmacy and DEA drug diversion investigators whenever there is suspected drug diversion. The Oregon Board of Pharmacy addresses screening for red flags on its website at: http://www.oregon.gov/Pharmacy/pages/index.aspx), and further links to an YouTube educational video: https://www.youtube.com/watch?v=WY9BDgcdxaM&feature=youtu.be. If you are an Oregon pharmacist, I encourage you to view this video.