- The Washington Times - Wednesday, July 23, 2003

Insurance companies are leaving doctors who prescribe marijuana to patients personally liable in malpractice cases involving their use of the drug, according to a report released yesterday.

With some states and local jurisdictions ignoring a federal ban on the use of marijuana, the drug-abuse-prevention group Educating Voices lauded insurance companies yesterday for not covering marijuana in their policies.

The group, at a news conference on Capitol Hill, expressed optimism in what its research suggests is a growing trend of insurance companies denying coverage in cases in which medicinal marijuana is prescribed. The risk of liability should deter doctors from prescribing the drug, which has not been approved by the Food and Drug Administration, according to the group’s report.

Members of Congress spoke alongside the activists, vowing to crack down on those prescribing marijuana for medicinal use.

“It is an abusive drug with no scientific evidence that it has any medical benefit,” said Rep. Jo Ann Davis, Virginia Republican. She said those who use marijuana for medicine are “shortsighted and irresponsible.”

The insurance companies are taking steps to limit their liability in claims resulting from the use of non-FDA-approved drugs. Donald Fager, vice president of Medical Liability Mutual Insurance Co., the largest medical-malpractice insurer in the nation, said it excludes experimental drugs and those not commonly in use because “we are covering what is consistent with accepted standards of care.”

“We don’t want to be on the hook for drugs that don’t have FDA approval,” he said.

Ten states have passed laws legalizing marijuana for medicinal purposes, even though the Supreme Court recently ruled in a case against an Oakland, Calif., cannabis club that federal law trumps state law. Insurance companies with exclusions on non-FDA-approved drugs do not exempt doctors in states that have legalized the drug for medicinal purposes.

The report from Educating Voices, based on research of case law, suggests doctors may be liable for injuries suffered by patients prescribed marijuana as well as third parties who are hurt by medicinal-marijuana users.

“It is a very smart move on the part of the insurance companies, and we are glad the private sector is stepping up to the plate to clarify this issue,” said Joyce Nalepka, president of the activist group Drug Free Kids: America’s Challenge.

Patients using marijuana say the drug is able to ease their suffering and diminish their pain unlike any drug the government has approved.

“Those who use it find it very helpful for their multiple sclerosis and their chronic pain and the list goes on and on,” said Dr. Mike Alcalay, medical director of the Oakland Cannabis Buyers Cooperative, the organization challenged in the Supreme Court case.

He said he isn’t worried by the report, which didn’t surprise him. He said other insurance companies cover the drug, including some that have agreed to cover the replacement of lost or stolen medicinal marijuana.

The American Medical Association has not endorsed marijuana for medicinal use and has called for increased research. The association supports the drug’s continued classification as a Schedule 1 drug, which, under the Controlled Substances Act, means it has a high risk for abuse and no current medicinal use.

The debate over marijuana highlights the broader issue of voters legislating which medicines are safe, instead of the FDA.

“Having voters decide what is available as medicine is a disaster,” said Peter Bensinger, a director of Educating Voices and the former drug czar under Presidents Ford, Carter and Reagan. He said state lawmakers are abandoning and destroying the 50-year-old FDA evaluation process.

Dr. David Hadorn, a prescriber of medicinal marijuana and a consultant for a British pharmaceutical company, said the FDA process is “too much of a straitjacket and too confining” for marijuana. He said it should be treated as a natural health remedy and not need FDA approval.


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