Rob Corry rips apart another Senator Chris Romer bill — this one about relationship between doctors and medical marijuana patients
By Michael Roberts in Follow That Story, Marijuana, PoliticsMon., Jan. 25 2010 @ 12:10PM

http://blogs.westword.com/latestword/2010/01/rob_corry_rips_apart_another_s.php

Rob Corry has his red pencil out again.

​Earlier this month, we told you about medical marijuana attorney Rob Corry’s shredding of Senator Chris Romer’s draft bill to regulate the medical marijuana industry — an action that predated Romer’s decision to withdraw the legislation.

Since then, Representative Tom Massey has taken on the chore of assembling a bill to regulate the industry — one likely to impose law-enforcement-supported doctor-patient limits that might destroy the dispensary business. As for Romer, he’s putting forward a bill focusing on the doctor-patient relationship — one Corry sees as problematic enough to warrant another line-by-line dissection, offered in a letter sent to all Colorado legislators earlier today.

Corry’s analysis of the latest bill, on view here, albeit with the occasional editorial cross-out, isn’t as vituperative as the first. Indeed, there are numerous passages to which he doesn’t object. Nevertheless, he sees the document as a whole as “a major shift in government interaction and oversight of the doctor-patient relationship, and there are probably parts of it that are unconstitutional.”

Exhibit A: Romer’s call for “a government-appointed board of overseers to second-guess a doctor’s recommendation,” Corry notes. “That has major constitutional implications.”

To illustrate this point, Corry applied the Romer bill’s provisions to abortion: Read that document here. And in his letter, he raises the specter of lawsuits should the legislation be passed as is. He writes:

My clients’ lives literally depend on their access to medicine, and SB 10-109 thus causes concern, and we hope you or the sponsors will consider modifying it or withdrawing it. If not, and it becomes law, it will cause unnecessary human suffering and may expose the State of Colorado to costly litigation.

There are certainly no shortage of medical marijuana issues that strike Corry as litigable. Note the question of whether employers can prevent licensed medical marijuana patients from using the substance under the provision of company drug policies — the subject of this Denver Post article.

“I’ve represented people on this issue,” Corry says — and while he hasn’t yet filed a lawsuit to address it, that’s because “we’ve usually been able to work things out with the employer.” Still, he continues, “I do think people might have an ADA-type claim based on disabilities from a debilitating medical condition.

“The constitution says employers don’t have to make accommodations for workplace use, which makes some sense,” he acknowledges. “But as far as what an employee does on his or her own time, that’s not the business of the employer” — not should someone’s boss be able to decide what prescriptions should be used to treat an individual’s ailments.

In the meantime, Corry says he hopes to work with legislators “to get the bad parts of Senator Romer’s bill taken out — and I’m going to be putting forward a package of legislative proposals in the next few days.”

Here’s guessing they’ll be significantly different from Romer’s.

The Letter:

Robert J. Corry, Jr.
Attorney at Law
~
600 Seventeenth Street
Suite 2800 South Tower
Denver, Colorado 80202
303-634-2244 telephone
303-260-6401 facsimile
Robert.Corry@comcast.net
www.RobCorry.com

VIA ELECTRONIC MAIL

January 25, 2010

Colorado State Senators
Colorado State Representatives
State Capitol
Denver, Colorado

Re: Preliminary Comments on Senate Bill 10-109
“Regulation of the Physician-Patient Relationship for Medical
Marijuana Patients”

Dear Senators and Representatives:
Thank you for considering these comments on SB 10-109, “Concerning
Regulation of the Physician-Patient Relationship for Medical Marijuana Patients,”
attached hereto.
I am a lawyer who has specialized in Medical Marijuana issues for
approximately nine years. Some of my relevant experience includes: I
successfully sued the State of Colorado and Department of Health over its illegal
five patient per caregiver limit, won an injunction against the City of Centennial
over its illegal prohibition of the constitutional right to medical marijuana, tried
seven felony criminal jury trials involving medical marijuana, have represented or
currently represent over 100 criminal defendants where medical marijuana was an
issue in the case, have represented or currently represent over 40 caregivers
assisting patients with their medical marijuana, have four appeals cases currently
in front of the Colorado Supreme Court or Colorado Court of Appeals involving
medical marijuana, and have persuaded courts to order the return of medical
marijuana to patients that was illegally seized by law enforcement, including
receiving marijuana grow equipment formerly held by the United States Drug
Enforcement Administration (DEA). I serve as Chairman of the Colorado
Wellness Association, the industry trade association designed to self-regulate the
medical marijuana industry without government “help,” and I also serve on the
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Board of Sensible Colorado. I formerly served as Republican Majority Counsel to
the U.S. of Representatives Judiciary Committee and Constitution Subcommittee,
so I am familiar with the legislative process.
In helping to build the medical marijuana community over the years and
experiencing the personal joy of seeing this formerly underground illegal criminal
enterprise blossom into a legal, safe, job-creating, tax-paying, space-renting,
vibrant and beautiful economic force in a relatively short time, I am familiar with
the unique challenges facing patients, caregivers, and physicians who specialize in
this area. My clients’ lives literally depend on their access to medicine, and SB
10-109 thus causes concern, and we hope you or the sponsors will consider
modifying it or withdrawing it. If not, and it becomes law, it will cause
unnecessary human suffering and may expose the State of Colorado to costly
litigation.
In general, the top three problems facing Colorado’s Medical Marijuana
patients are (1) high cost; (2) choices and consistent supply; and (3) quality control
and labeling. Fundamental laws of supply and demand — which the legislature
cannot repeal — hold that only way to lower cost, on both a short- and long-term
basis, is to increase supply. SB 10-109 would significantly increase costs to
patients, thereby placing the most vulnerable of them in danger.
As a threshold legal matter, the medical use of marijuana is a constitutional
right, which cannot be limited by the legislature without amending the state
constitution. Your legislative oath of office to support the Colorado Constitution
(Colorado Constitution, Article V § 2) means the voters have entrusted you to
uphold all aspects of the Colorado Constitution, even those with which you may
personally disagree. We understand that the medical use of marijuana is
controversial, but majority rules, and the majority of Coloradoans placed this in
our constitution.
Specific subsection-by-subsection analysis follows. I am happy to meet
and confer with any elected official or staff member who wishes to discuss my
position in greater detail.
Section 1(1)(a)(I), page 2:
Requires physician and patient to have “a treatment or counseling
relationship,” which implies that patient must have seen the particular physician
on more than one occasion. If this is not the intent of the bill, it should be so
clarified. If it is the intent of the bill, then it should be modified as it conflicts with
the Colorado Constitution, Article XVIII § 14(1)(e), which defines and establishes
the qualifications of the physician as “a doctor of medicine who maintains, in good
standing, a license to practice medicine issued by the State of Colorado.” The
requirement of multiple physician visits is discriminatory against, and harmful to,
patients who have limited incomes, or those do not have medical insurance, or
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those veterans who served our country in time of war and who see doctors
affiliated with the Veterans Administration which as a federal governmental
entity, has shown some hostility against permitting its physicians to advise
medical marijuana.
Section 1(1)(a)(II), page 2:
Requires physician to consult with the patient before the patient applies for
registry identification card. I have no objections to, or concerns with, this
subsection.
Section 1(1)(a)(III), page 2-3:
Requires physician to provide follow-up care and treatment, including
physical examinations, to determine efficacy of medical marijuana. There are
similar concerns as with Section 1(a)(I) above; it is discriminatory and harmful to
patients with limited incomes or without health insurance, to pay for these
additional government-mandated doctor visits. It is also inconsistent with the
Colorado Constitution, Article XVIII § 14.
Section 1(1)(b), page 3:
I have no objections to, or concerns with, this subsection.
Section 1(1)(c)(I), page 3:
I have no objections to, or concerns with, this subsection.
Section 1(1)(c)(II), page 3:
Requires physician to hold a valid, unrestricted license to practice
medicine. Some physicians are permitted to practice medicine on restricted
licenses for a variety of reasons dependent on case-by-case factors. Some of these
restrictions may result from a physician’s own illness or injury, incurred through
no fault of the physician. Physicians on restricted licenses are typically permitted
to practice medicine. Some are permitted to practice in their respective specialties,
which may be highly complex. If a physician on a restricted license can perform
heart surgery, for example, then surely she is qualified to advise patients re
medical marijuana. If a physician satisfies the definition in the Colorado
Constitution, Article XVIII § 14(1)(e), then the legislature cannot further restrict
this constitutional definition, which a physician with a restricted license satisfies.
Section 1(1)(c)(III), page 3:
Requires physician to hold a U.S. Drug Enforcement Administration (DEA)
controlled substances registration and have a lifetime perfect record of never
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having same suspended or revoked. First, a DEA controlled substance registration
is optional, not required to practice medicine in Colorado, and many M.D.s and
D.O.s in Colorado forego or give up such registration because they are familiar
with the damaging effects of addictive synthetic narcotics and are not interested in
prescribing controlled substances to their patients. This section would also
exclude a physician who had a one-day suspension of her DEA license 25 years
ago. Second, to permit the DEA any say in whether a Colorado physician is able
to recommend medical marijuana under our State’s Constitution invites
unconstitutional federal oversight of our state. The DEA continually demonstrates
its disrespect for the will of Colorado’s voters as regards medical marijuana by
working to undermine our medical marijuana law almost from its inception,
including the DEA setting the illegal Five Patient limit, according to sworn court
testimony of a Colorado Department of Health official in the 2007 LaGoy v. Ritter
case in Denver District Court, which I litigated and which struck down the DEA’s
Five Patient limit. The State of Colorado must not provide this potent weapon to a
hostile federal police force.
Section 1(d), page 3:
I have no objections to, or concerns with, this subsection.
Section 1(e), page 3:
I have no objections to, or concerns with, this subsection.
Section 1(e)(2), page 3:
I have no objections to, or concerns with, this subsection.
Section 1(2), page 3:
I have no objections to, or concerns with, this subsection.
Section 1(2)(a), page 4:
Requires registry card to bear the name of the physician certifying the
debilitating medical condition, and permits the confidential [sic] registry
containing the physician’s name to be communicated outside of the confidential
[sic] registry as a device to refer physicians to the Colorado Board of Medical
Examiners. This “witch hunt” provision is unconstitutional. Colorado
Constitution, Article XVIII § 14(c)(2) provides that “No physician shall be denied
any rights or privileges for the acts authorized by this subsection.” It also provides
that all information about physicians remains confidential. Article XVIII §
14(3)(a). This means that any physician is free to advise as many patients as she
chooses, and cannot be legally denied any rights or privileges, i.e., the license to
practice medicine, for doing so. Further, requiring a single physician’s name on
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the card makes no sense. As to any given patient, there could be many doctors
who, through the years of the patient’s history, diagnose the patient with a
debilitating medical condition or conditions. There is no legal requirement that a
patient disclose his complete medical history to the Health Department that issues
the cards. Requiring the physician’s name on the card also invites unnecessary
disclosure and further witch hunts by law enforcement that may come into contact
with the registry cards, and which have shown little restraint in persecuting
courageous doctors who try to do the right thing by their patients.
Section 1(2)(b), page 4:
I have no objections to, or concerns with, this subsection.
Section 1(2)(c), page 4:
Eliminates confidentiality of registry card. This is unconstitutional. The
Colorado Constitution, Article XVIII § 14(3)(a) provides that the registry is
confidential. In 2001, the Legislature passed a criminal statute creating a
misdemeanor criminal offense for any person, including law enforcement or
government officials, who discloses information within the medical marijuana
registry without the patient’s consent. C.R.S. § 18-18-406.3.
Section 1(2)(d), page 4:
Requires physician “recommendation” [sic] to be on a state-prescribed
form. The Colorado Constitution, Article XVIII § 14(1)(j) defines “written
documentation” as “a statement signed by the patient’s physician or copies of the
patient’s pertinent medical records” as the requirements to obtain a registry card.
Thus, a patient need only submit his medical records to confirm his diagnosis of a
debilitating medical condition and physician advice, in order to obtain the registry
card. Furthermore, physician advice need not even be written and can be verbal.
The constitution only requires that “[t]he patient was advised by his or her
physician … that the patient might benefit from the medical use of marijuana,”
The first jury trial in Colorado that used the constitutional affirmative defense of
medical marijuana involved verbal advice by a physician. See People v.
Margenau, Gunnison District Court Case No. 05CR42. The jury acquitted my
client Ryan Margenau of all felony counts even though he did not have a shred of
paper reflecting this physician advice. The physician testified at trial that he
verbally advised Mr. Margenau, the judge and conservative rural jury accepted
that as a valid defense, Mr. Margenau walked out of court with all of his marijuana
and grow equipment, and the prosecution did not waste time and taxpayer monies
appealing the verdict, because the result was legally obvious and there was no
error by the District Court in permitting the defense based on verbal advice.
Further, SB10-109 uses incorrect terms. No where does the constitution refer to a
“recommendation” by a physician. All the constitution requires is that the
physician provide “advice” that marijuana “might” benefit the patient, or that the
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condition “may” be alleviated by the use of marijuana. Colorado Constitution,
Article XVIII § 14(1)(a)(II); § 14(2)(a)(II); § 14(c)(I); § 14(c)(II); § 14(3)(b)(I).
There is no requirement of a “recommendation” in the constitutional provision. It
only requires physician “advice,” and that “advice,” verbal or otherwise, need only
be that the patient “might” or “may” benefit from marijuana. Thus the voters
engraved in stone a sensible standard, permitting access to medical marijuana,
perhaps because the concept of a leafy plant is not offensive to a majority of
mature adult voters. Unfortunately this bill tightens the voters’ expressed desire to
an unconstitutional degree. Physician “advice” under this constitutional provision
is not a written “prescription,” as Attorney General John Suthers concluded in a
formal opinion holding that medical marijuana sales can be taxed. Colorado
Attorney General Formal Opinion No. 09-06 (November 16, 2009.)
Section 1(2)(e), page 4:
I have no objections to, or concerns with, this subsection, other than
concerns expressed above regarding the definition of “bona fide physician-patient
relationship.”
Section 1(2)(f), page 5:
I have no objections to, or concerns with, this subsection.
Section 1(2)(g), page 5:
I have no objections to, or concerns with, this subsection.
Section 1(2)(h), page 5:
Provides that the Department has the authority to impose “sanctions” for
physicians who violate this bill, including revocation or suspension of the
physician’s “privilege” to make medical marijuana “recommendations.”
Government bureaucrats in this Department have no authority to revoke any
privilege held by physicians, to whom the voters provided strong immunity in
relation to advice given to medical marijuana patients. Please refer to comments
above, detailing the unambiguous command of the Colorado Constitution, Article
XVIII § 14(c)(2) that “No physician shall be denied any rights or privileges for the
acts authorized by this subsection.”’ Please also refer to comments above
detailing that this is not a “recommendation,” it is “advice.” Even federal appeals
courts have determined that physicians are immune under the First Amendment to
the U.S. Constitution for advice given to a patient. Conant v. Walters, 309 F.3d
629 (9th Cir. 2002), cert. denied, 124 S.Ct. 387 (2003) (physician has First
Amendment right to advise patients re medical marijuana and cannot be
prosecuted or otherwise have license affected).
Section 1(3)(a), page 5:
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Requires that a physician “certify to the department” that a patient may
benefit from the medical use of marijuana. The constitution does not require the
physician to have any communication whatsoever with the health department or
any other government bureaucracy. All communications between the physician
and patient are confidential and privileged, and it is the patient who holds this
privilege and decides whether to waive it and seek optional state registration.
Increasing numbers of patients opt to cut out the health department out altogether,
as patients suffer the State’s four month-delay in issuing registry cards, and as
patients continue to rack up court victories with physician advice and no registry
cards, and wellness centers correctly accept physician advice alone. By its own
delays, excessive fees, and hoarding millions of dollars in patient funds, the State
is rendering registry cards irrelevant and superfluous to the process.
Section 1(3)(b), page 5-6:
Requires physicians maintain separate record-keeping system for patients
for whom physician has “recommended” medical marijuana and will turn over
these “separate but equal” patient records to the government upon demand so
bureaucrats can go through peoples’ private medical records. Such an intrusive
provision does not belong in the United States of America.
Section 1(3)(c)(I), page 6:
Prohibits a physician from being compensated for his or her work, except
by the patient directly. This is a requirement that no doctor in any other specialty
must follow. Most doctors are compensated by the hospitals in which they
practice, and doctors rarely collect money directly from their patients. Typically,
in all areas of medicine payments for medical services are made to third parties,
receptionists, or cashiers.
Section 1(3)(c)(II), page 6:
Prohibits a physician from offering a discount to patients. Under this
section, physicians are prohibited from helping poor or disadvantaged people,
disabled veterans, homeless, and others on limited incomes, unless the doctors
charge a homeless man the same price as a millionaire. We thought the problem
was that docs were making “too much” money from medical marijuana. There is
nothing wrong with discounts for suffering patients. Low-cost or discounted
medical services should be encouraged, not prohibited. This bill hurts suffering
people who happen to benefit from marijuana. But doctors could still legally hand
out Oxycontin like candy, for free.
Section 1(3)(III), page 6:
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Prohibits a physician from seeing patients at locations where medical
marijuana is distributed. The same standard, applied to any other drug, would
eliminate all hospitals where drugs are distributed, essentially every hospital in
Colorado nearly of which have their own pharmacies in the same building under
the same roof. Medical marijuana caregivers are happy to comply with reasonable
regulations (although we are a freedom-loving bunch and will regulate ourselves
better than government can), but should not be held to a standard with which no
hospital could comply.
Section 1(3)(IV), page 6:
I have no objections to, or concerns with, this subsection.
Section 1(4), page 6-7:
Creates the “Medical Marijuana Review Board,” which will intrude upon
and interfere with confidential physician decisions regarding individual patients
under the age of 21. The specter of these vulnerable young patients facing a
Government board of overseers for “permission” to access his or her
constitutionally-protected, physician-recommended medicine does not belong in a
free country. This Board’s very existence is unconstitutional.
Section 1(5), page 7:
I have no objections to, or concerns with, this subsection.
Section 1(6), page 8:
I have no objections to, or concerns with, this subsection, other than to
point out that the Legislature’s April 20, 2009 transfer of $258,735.00 in patient
funds to the general fund is probably unconstitutional under the Colorado
Constitution Article XVIII § 14(3)(i) which allows the fees to be collected to
administer the registry card program, not to enrich government’s coffers for
general pork projects. Colorado’s suffering medical marijuana patients are not the
Legislature’s personal piggy bank. These monies should be refunded to patients.
Section 2, page 8:
I have no objections to, or concerns with, this subsection other than those
stated above regarding the existence of the “Medical Marijuana Review Board.”
Section 3, page 9:
I have no objections to, or concerns with, this subsection other than those
stated above.
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Section 4, page 9:
I have no objections to, or concerns with, this subsection.
Section 5, page 9:
Safety clause. There is no evidence whatsoever that this bill is “necessary
for the immediate preservation of the public peace, health, and safety.” As of
September 30, 2009, over 800 physicians in Colorado have advised patients that
marijuana might benefit them. No negative impacts on public peace, health, and
safety have resulted from these recommendations. In fact, this bill would harm
public health and safety for all of the reasons detailed above.
In conclusion, in working to help build this community over the past nine
years, I understand that marijuana remains a controversial medicine, although that
is rapidly shifting with even the conservative American Medical Association
accepting it. Luckily, the majority rules, and Colorado’s compassionate voters are
more numerous than those who would deny others this miracle medicine.
SB 10-109 is larger and more significant than just medical marijuana. It
creates unprecedented governmental intrusion into the sacrosanct physicianpatient
relationship. The bill opens the door to further government oversight of
doctors in all fields. In conceptualizing SB 10-109, it may be helpful to consider
another controversial medical issue, abortion. Using SB 10-109 as a model, we
have drafted proposed legislation, attached, for regulating the physician-patient
relationship in the abortion industry. If SB 10-109 were to become law and
withstand legal challenge, then the Colorado Legislature would set forth a national
blueprint for further regulation of that industry. The government “Abortion
Review Board” for abortion patients under 21 years of age, closely modeled after
this bill, would be very interesting to watch.
Thank you for considering these comments. Please call me at 303-634-
2244 or email me at Robert.Corry@comcast.net with any questions.
Sincerely,
Robert J. Corry, Jr.
Attorney and Counselor at Law
Attachments:
SB 10-109
Model Legislation “Concerning Regulation of the Physician-Patient Relationship
for Abortion Patients”