Medical Marijuana Wins Temporary Restraining Order

A federal judge in San Francisco has issued a temporary restraining order (TRO) which effectively bars Federal officials from taking punitive action against physicians in California who recommend to patients medicinal use of marijuana. Since the passage of Proposition 215 doctors have been threatened with criminal prosecution, loss of prescription writing privileges, and exclusion from Medicare and Medicaid programs.

In response to the threats a class action lawsuit was filed January 14 by the American Civil Liberties Union, medical marijuana patients, and a group of prominent physicians. The lawsuit seeks to permanently bar any punishment of physicians for recommending or discussing marijuana. Lawyers for the plaintiffs contend that doctors have a constitutionally protected First Amendment right to free speech to discuss any treatment possibility (specifically marijuana) with their patients, and that speech limitations placed on physicians would amount to government intrusion in the doctor-patient relationship.

The restraining order is temporary and in effect pending ruling by the court on motions before it and during settlement process--which is ongoing with a federal judge acting as mediator between lawyers for the plaintiffs and the government. A settlement conference, scheduled for April 17, is intended to facilitate a negotiated resolution so that a full, lengthy trial can be avoided. Although that meeting had yet to occur at press time, Dave Fratello of Americans for Medical Rights (the sponsors of Proposition 215) speculated that settlement was unlikely because the government is unwilling to concede that marijuana is a legitimate treatment option. For that reason he expected that this process will continue to a full trial.

Attorneys for the plaintiffs are hopeful that a settlement can be reached. Jonathan Weissglass, of the San Francisco law firm of Alshuler, Berzon, Nussbaum, Berzon and Rubin, noted that the TRO was "binding both as to government sanctions imposed now, and as to sanctions imposed in the future for actions taken now."

At least in the near term, physicians in California can discuss with patients and recommend to them medicinal use of marijuana without fear of retaliatory actions by the federal government. Because of the risks involved doctors should be aware that the TRO may not apply to discussions with third parties such as buyers' clubs. Doctors have been advised, as a matter of prudence, to especially avoid anything that could be construed as facilitation of criminal activity -- for example, suggesting cultivation, buyers' clubs, or other means for acquiring marijuana. (It should also be noted that some buyers' clubs do not require a recommendation of marijuana from the doctor-- only a letter of diagnosis and symptoms. This might be important because the TRO does not specifically address the communication between doctors and buyers' clubs.) Additionally, doctors should be careful to make sure all conversations are documented in medical records and that the relationships are well established and ongoing with bona fide patients (since there have been concerns that the U.S. Drug Enforcement Administration might use impostor patients and informers).

For an update on the situation and the legal status of medical marijuana, contact Americans for Medical Rights, 1250 Sixth Street, #202, Santa Monica, CA, 90401, 310/394-2952, fax 310/451-7494.