The Bonafide Dr/Pt Relationship- What you don’t know CAN hurt you!

The voters of Michigan approved medical marijuana in 2008. The concept of the law was simple: Sick people could use marijuana to relieve their suffering. Many thought it would be as simple as going to their primary care doctors with a qualifying condition. Unfortunately, due to the politics of cannabis, many primary care physicians refused to take part in the program, even if their patients were clearly qualified.

Because many primaries would not write certifications, Michigan saw the rise of ‘Certification Clinics’ where physicians would meet with patients and sign the applications for a medical marijuana card. While many physicians were ethical, required records, kept charts, etc, others were not. These ‘clinics’ went from hotel to hotel signing as many as certifications as they could, in many cases without requiring records or any documentation from the patients to support their conditions.

The first rumblings of problems came in Sept 2010 with he Redden Decision. The court made it clear that there had to be some sort of standards to include a bonafide relationship with the doctor to the certification process similar to the standards of traditional medicine- records, face to face visits, and follow up.  But it was without teeth, without the force of law.  Then the medical board stepped in and put out some guidance on medical marijuana certification, but again, without the force of law, just the threat of doctors being held somewhat accountable by the licensure boards if they strayed too far.

This situation pointed out some weaknesses of Michigan’s MMJ program. First, every case that went before the court trying to claim a section 8 defense not only had to prove the three prongs of section 8, they had to prove what a ‘Bonafide Dr/Pt Relationship’ even was- then they had to prove they had one. Every case let a prosecutor attempt to define a ‘Bonafide Dr/Pt Relationship’ to THEIR advantage.  Even the Court of Appeals in the Tuttle case pointed out this flaw, and used it to come up with their own definition to the detriment of Mr. Tuttle.

This problem was clearly solved by PA 512 of 2012- The Bonafide Dr/Pt Relationship Act.  Now we had a very simple and clear definition of EXACTLY what a bonafide relationship was.  Without it we are in a situation when a police office can decide you are speeding based on whatever HE thinks the speed limit should be, because there are not speed limit signs on the road.  Follow the law, you have a bonafide relationship.  Don’t follow it, and you can kiss your Section 8 Defense goodbye.

The Bonafide Dr/Pt Relationship Law
Why do we even need one?  Here are five reasons:

1/ It is a professional evaluation based on standard medical practice, and it requires the same data that any doctor would need to make a considered medical judgement- records, visit with the patient, a chart is made, follow up is offered- just like any other medical visit.
2/ It defines the standard, follow the standard and the court cannot claim the relationship wasn’t there. This specifically prevents prosecutors from trying to wing it every case, and gives the court a specific ‘check list’ to say yes or no.
3/ It protects the physician from the board. To say someone violated the standard of care, we must know what the standard of care is. To claim you followed the standard of care, again, you have to define it.
4/ It gives the regulatory authorities (like the medical board) the ability to specifically stop physicians that violate the standards, this in the end protects patients. Just as malpractice laws protect patients, just like the food and drug administration keeps bad drugs off the market to protect patients.
5/ It implies that physicians offering certifications meet a certain standard, thus letting patients going to these physicians take comfort in that they are getting good care from a qualified medical marijuana certification doctor.

People v Goodwin- The Failure of the Bonafide Dr/Pt Relationship

The Michigan Court of Appeals recently ruled on the case of People v Goodwin.  The particulars of the case are not important, the appeal centered on the bonafide dr/pt relationship between Mr. Goodwin and his certification physician.  While Mr. Goodwin clearly had a qualifying medical condition which was supported by his medical records, they proceeded to deliver a blistering condemnation of the bonafide relationship offered by his physician.

While the patient had medical records and clearly qualified for a card, his doctor could not produce them, claiming that he had a release to get them if he needed them.  Certifications require review of records, and merely having a release does not constitute actually reviewing records.

As a court certified expert witness I am absolutely mystified as to a time I could need the actual records more than when I was called into court to defend my certification, but his doctor apparently didn’t feel he needed them even as he was on the witness stand.  That alone crippled his patient’s defense.

In addition to this shocking lack of preparation for trial (much less certification) the court found that his doctor clearly had no intention of following up on his patient to monitor care or check the efficacy of his treatment.  There was no discussion at the visit or at any time afterwards on amounts of cannabis that may help, again required by law and absolutely KEY to establishing what is a reasonable amount for the patient to possess, which would have clearly caused a failure of the second and third prongs of the section 8 defense.

The result was that this by all appearances otherwise medically qualified patient lost his section 8 because he chose to go to a hotel signature clinic to simply obtain a signature on his application.

What Can Patients Do?

Patients have the ultimate responsibility for their own bonafide dr/pt relationship.  By knowing the law, patients can recognize and avoid a substandard certification that could lead them to lose their Section 8 defense under the MMMA.  There are several elements to the bonafide dr/pt relationship:

1/  Patients must provide records to their certification clinic to confirm their qualifying condition.  These records must be retained by the certification physician and should be available for review AT THE TIME OF THE OFFICE VISIT.  The office visit should be in a medical setting- a fixed based office.  If a certification is performed outside of a medical office, there should be a good reason for doing so.
2/  A face to face, in person visit with the physician is required for all new and renewal certifications.  Under no circumstances are through the mail acceptable, and Skype visits were specifically not allowed. Dr. Townsend was involved in the development of the standards of care for certifications, and argued for telemedicine, but the law was written specifically to exclude Skype Certifications.
3/ An expectation of follow up must exist to monitor the efficacy of your treatment with cannabis.  Goodwin lost his section 8 defense in large part because his doctor only planned on seeing the patient for a renewal when the license expired.  There was not effort or intention of doing any follow up (nor was there a discussion of reasonable amounts of cannabis to treat the condition).  At Denali Healthcare we offer free on line follow up for our patients.
4/ An offer must be made to the patient to notify their primary care physician of the certification visit.  The patient may elect to have the records sent to their primary, or not, but the subject must be addressed.

Through the Mail Certification may not protect your section 8 defense

Sending in records and $150 does not qualify for a face to face meeting with the physician.  In the event a patient does not meet the requirements of a bonafide dr/pt relationship the Goodwin decision shows that despite a qualifying condition, the patient does not meet the burden of the first prong of the section 8 defense. Several low standard clinics are attempting to encourage their patients to renew by mail, but have specific waivers patients must sign to relieve the clinic of liability for court and attorney costs, property forfeiture, and incarceration.

The State has an Obligation to Enforce the Standards to Protect Patients

The state has passed laws setting standards for certification.  Patients have a reasonable right to expect that their physicians are meeting those standards, because if they didn’t, the state would act and bring their physician into compliance.  Unfortunately, there have been very few actions against substandard certification physicians, and some have repeatedly had their certifications called into question in court, yet continue to do them based on questionable practices.  Why hasn’t the state acted?

Denali Heathcare: Michigan: MMMA Card, Medical Marijuana Card, Section 8 Defense Denali Healthcare offers evaluations for Michigan Medical Marijuana Cards under the Michigan Medical Marijuana Laws. Call 989-339-4464 for details.

 

 

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