Dispensaries can mitigate the risk of being sued by operating less as careless cannabis retailers and more like savvy medical providers
By Karen Canton and Martina Jaccarino
The evolving role of the medical marijuana salesperson, from budtender to licensed medical professional, is just beginning.
Those who are willing to be at the cutting edge of the medical cannabis industry need to know how to reduce the chance of their business being involved in an expensive tort lawsuit.
Within the American legal system, the standard of care is defined by juries after negative outcomes wind their way through the courts. Some of us do not think cannabis can cause a negative outcome, but when it comes to medicine and the law, a “negative outcome” can be any effect that does not fall within the narrow confines of the patient’s desired outcome. That means any effect can potentially be considered a negative outcome in a court of law. Dispensary owners and their employees must think defensively.
Documentation is always the best way to protect oneself in a lawsuit. Waivers, consents, disclosures and questionnaires must be part of every sale of medicine, including medical marijuana. However, education and meaningful communication with patients will benefit businesses in many different ways. Informed patients will have better results, more realistic expectations and take ownership of the outcome. These patients will be less likely to sue, and they will return to your dispensary in order to maintain that relationship. Additionally, steps taken toward prevention will come into evidence if a lawsuit does arise.
Here are some things dispensary owners and their staff can do to minimize the risk of lawsuits:
The Connecticut way
In the same year that Washington and Colorado legalized cannabis for all adults, the state of Connecticut quietly ushered in a new set of standards for medical marijuana. Governor Dannel Malloy signed legislation to allow medical marijuana in 2012, but instead of following the lax rules established by states west of the Mississippi River, Connecticut became the first state to require a board-certified, on-site pharmacist to dispense all cannabis products.
Nick Tamborrino was one of several pharmacists who saw the business opportunity behind the rule. He founded Bluepoint Wellness in Branford in 2013.
“I think having the pharmacist involved legitimizes this in a way,” Tamborrino said in an interview with Pharmacy Today.
New York and Minnesota, which have some of the most restrictive medical marijuana laws in the nation, have followed suit with mandatory, on-site pharmacists.
— Garrett Rudolph
– Keep yourself and your employees up to date on state and local laws and regulations. This is an absolute must.
– Know all the procedures and protocols in place to ensure compliance with the law. Your attorney should prepare a manual for you and your employees, but it is up to owners and management to create an environment where staff members actually read the manual.
– Demand that your employees keep themselves up to date on the benefits and risks of medical marijuana. Every benefit to one patient can be defined as a risk to another. Furthermore, scientific studies of the risks of marijuana far outweigh studies of the benefits. Serious business owners will not permit employees to keep their heads in the sand.
– Develop — or have your attorney develop — a social and medical use questionnaire for your providers to complete and update with every patient. Your attorney can help you develop a scale of risks. Any patient with too many risks should be referred to a specific staff member, preferably a registered nurse or physician, for assistance in selecting products. Counsel patients about drug interactions and train employees about the best way to ensure patients listen to and understand the information.
– Screen patients with a history of psychological illness. There is mounting evidence that medical marijuana is not worth the increased risk of psychosis for these patients. At the very least, require a referral from their mental health professional.
– Have the proper waivers in place to push liability to the doctor because it is very difficult to pass liability off to the patient. Garden variety patients who suffer from chronic pain, but are in otherwise good health, can be treated by a lay person with basic knowledge of cannabis. But any patient taking multiple medications needs to be informed about drug interactions, and must sign additional waivers. (It is not realistic to rely on the fact that doctors have liability for medical issues. Doctors have been developing defensive practices for the courtroom for more than 40 years, and they will be using their own waivers and other documentation.)
– Get access to Med-Scape or another high-quality information source for scientific, peer-reviewed, up-to-date literature to address any patient questions. This information will be admissible in court, and it is probably the only type of answer your employees should give in response to questions about risks. Unfortunately, every business has to deal with people looking to pursue a fraudulent claim.
Karen Canton has been in the insurance and bonds business for more than 35 years. She is a published author and hosts a radio show called Grass Roots Marketing. She can be reached at www.mmjbonds.com.
Martina Jaccarino is a trial attorney who has been practicing in Nevada since 1995. She has completed more than a dozen jury trials ranging from multi-million dollar brain injury cases to professional negligence cases and insurance contract disputes. She has recently been heavily involved in Nevada’s medical marijuana program. She also holds a license to practice law in Oregon and North Carolina. Her website is www.mjlawvegas.com.