What qualifies as a Bona Fide Physician Patient Relationship for purposes of the Michigan Medical Marihuana Act?

David Rudoi Esq.

March 11, 2012

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The Board of Medicine and the Board of Osteopathic Medicine and Surgery have adopted a statement in an attempt to shed light on the applicable standard of care for an evaluation of a person in order for that person to get certified to use marijuana for any medical condition. The Boards’ statement lays out the components necessary to complete a full medical evaluation in order to determine both the suitability and appropriateness for recommending treatment of any kind, including recommending a treatment involving medical marihuana necessary for medical marihuana certification in the state of Michigan. The components are:

1. A hands-on physician patient encounter,
2. A full assessment and recording of the patient’s medical history,
3. Relevant physical examination,
4. A review of prior records of examinations, treatments and treatment response, Including that related to substance abuse history,
5. Receipt and review of relevant diagnostic test results,
6. Discussion of the advantages, disadvantages, alternatives, potential adverse effects and expected response to the treatment,
7. Monitoring the response to treatment and possible adverse effects
8. Creation and maintenance of patient records which document the above information, and
9. Communication with the patient’s primary care physician when applicable.

The boards also expect for the medical evaluations to take place at permanent location in order to allow the patient to return for follow up consultations and assistance as needed. A physician who fails to meet the above guidelines when certifying a patient for medical marihuana treatment related to a medical condition could be found to be practicing below the standard of care, and thus subject to disciplinary action.
For medical marihuana patients this statement by the boards can affect the legitimacy of their certification allowing them to qualify as a patient under the Michigan Medical Marihuana Act. MCL MCR 333.101 states that “(f)or a person to be determined a qualifying patient they must be diagnosed by a physician as having a debilitating medical condition.” MCR 333.101 (6) states: “(t)he person must then get written certification from a physician in the course of a bona fide physician patient relationship stating the patients debilitating medical condition and that in the physician’s medical opinion the patient is likely to receive therapeutic relief or palliative benefit from the medical use of marihuana in order to alleviate the debilitating medical condition or the symptoms associated therewith.”

In the case of People v. Redden, 2010 Mich. App. LEXIS 1671 (Mich. Ct. App., 2010) the appeals court questioned the existence of a bona fide physician patient relationship in order for a patient to assert the Section 8 affirmative defense. Therefore, the existence of a bona fide physician patient relationship effects a patients protections under the Michigan Medical Marihuana Act when the case goes to trial.