The SCAHRM SOURCE Newsletter

A BRAND-NEW TAKE ON WAKE AND BAKE: Healthcare Risk Management Issues in Cannabis-Legal California

March 2019

By Steve Meister
Criminal Defense Lawyer, Meister Law Offices

On January 1, 2018 cannabis became legal in California for responsible adult use (commonly known as “recreational” use).  Its possession for personal, medicinal use has been a legal defense – in essence legal – since 1996.  Cannabis legalization in the nation’s most populous state and largest adult-use market impacts healthcare risk management.  This article briefly summarizes new California law and discusses some of its applications to healthcare settings and the good people of SCAHRM.

First, a few points about the new law:

  • It’s responsible “adult use,” not “teenage use,” so no, high school age child, it’s not legal for you.
  • You can get a DUI if you are driving while under the influence of cannabis, and you can’t be consuming it in public or while behind the wheel. The CHP says a DUI in California ends up costing an arrestee around $10,000.  Think about it:  Is there any amount of weed, Doritos and remastered pressings of Pink Floyd’s “The Wall” worth that high a price?
  • The only cannabis that’s legal to sell or consume in California is what you buy from a State- and locally-licensed business, with only lab-tested and approved products on the shelves. And, cannabis testing labs aren’t just there to verify product content – they exist to ensure consumers don’t ingest heavy metals, toxins, E-coli and other things which can ruin an evening.
  • Although the Bay Area, Sacramento, the Coachella Valley, San Diego and the Los Angeles region have local ordinances authorizing sale, cultivation and manufacturing (pens, gummies, foods, sleep aids, etc) of cannabis, well over half of California cities don’t have a a cannabis-business authorizing ordinance.
  • Cannabis possession, sale and cultivation remain illegal federally, though generally agencies such as the DEA are not enforcing federal drug laws against businesses or individuals in cannabis-legal states who are in compliance with state and local laws.

Second, you might come across cannabis-related issues in the following healthcare settings or circumstances:

  • Employee personal use: Healthcare enterprises might or might not allow personal use of cannabis by employees, even off-site, off-duty or even if there’s no impact on job performance.  Employees need to carefully review enterprise/company policy on the issue, and employers need to make policies expressly clear.
  • Medical Staff personal use: Same as above.  An added concern, of course – by the way, I hate when people say “of course,” but it does seem right to say it here – is that medical staff can’t be under the influence of any drug, legal or otherwise, when on duty and treating patients.  There could also be legal liability issues if a medical malpractice claim alleges anything about use of cannabis by the accused staff members.  Even if cannabis use had no impact on anything and the claim is just bogus, the issue is still “hot” from a PR and settlement perspective and could make litigation more difficult.
  • Patient personal use: There are times when a patient’s use cannabis medicinally or recreationally can or should have a medical professional’s blessing.  Depending on the medical problem being addressed, sound medical judgment may support or accommodate patient personal use.  Come on, Doc:  Do you want your pain patient taking opioids for a long time, or using cannabis if the latter brings non-addictive meaningful relief?

Similarly, if nursing staff is aware that someone inpatient is, say, taking a bite of a magic blueberry to get to sleep at night while in the hospital, there should be a full discussion of the issue, consultation with the treating physician, and coordination of medical care around the patient’s preference as long as patient safety is assured.

  • Risk managers and proactive issue-spotting: As with everything else, it’s the risk manager’s job to identify potential issues before anyone else does, address them proactively and openly, or be left to clean up everyone else’s mess if you miss an issue or people decide to not follow your sound advice and directives.  Add cannabis to the list of things you have to be aware, think about, plan about, educate about, and design protocols about.

And if you start to get aggravated, well, find some adult use cannabis, or at least some CBD to help you relax.  You’ll feel better.

About the Author

Criminal defense attorney and former prosecutor Steve Meister is principal of the Meister Law Offices.  He has been in practice since 1990 and has tried virtually every kind of case in criminal court.  He emphasizes state-court felony and misdemeanor crimes, federal prosecutions, and defense of doctors and hospitals in healthcare criminal law cases including prescribing offenses, anti-kickback, False Claims and other matters.

Steve’s practice also includes advising industries in compliance and crime prevention.  He pioneered instruction to the healthcare industry on the legal issues around opioid prescribing, and has taught nationally to everyone from the healthcare insurance industry to medical providers, hospitals, lawyers, medical societies and national educational conferences.  He has found that by knowing how investigators approach their work, he can educate clients, identify problem issues, and craft solutions to help persuade authorities to leave his clients alone.  In every case where an institution or individual has asked Steve to look proactively at criminal law compliance issues, no one has been prosecuted, even if they were already under criminal investigation.

In California’s newly regulated cannabis industry Steve advises other business’ lawyers and consultants on these issues, and is counsel to a testing laboratory and a manufacturer.  Steve has also appeared on air over 700 times as an expert legal commentator on criminal cases for television and radio news stations.  He has come to prefer radio because there is no pre-live shot makeup involved.