By Jennifer Goodrum, CDA Lobbyist
From the Winter 2020 Journal of the Colorado Dental Association
In 2019, Senate Bill 19-218 expanded the state’s medical marijuana program to explicitly allow dentists and advanced practice medical providers with prescriptive authority to recommend medical marijuana to patients with “disabling medical conditions.” For the purposes of recommending medical marijuana, disabling medical conditions include post-traumatic stress disorders or autism spectrum disorders diagnosed by appropriate medical or mental health providers, as well as conditions where an opioid may be prescribed for pain management. The “opioid substitute” criteria is likely the only condition that falls within the scope of the practice of dentistry. However, the legal environment around the new authorization for potential medical marijuana recommendations by dentists is untested—especially given the current lack of Colorado Dental Board rules to address this topic. As a result, significant caution is warranted in this space.
There is a rigorous protocol required for qualified providers before they can recommend medical marijuana for a disabling medical condition. Any qualified prescriber who wishes to recommend medical marijuana must register and receive approval from the state’s Medical Marijuana Registry through the state public health unit prior to making patient recommendations (colorado.gov/pacific/cdphe/medical-marijuana-registry-providers).
A dentist must then conduct a full assessment of the patient’s medical history and conduct an appropriate personal physical examination prior to making a recommendation to a patient. A dentist must also counsel the patient on risks and benefits of using medical marijuana and be available to provide follow up care to determine the efficacy of the use of medical marijuana by the patient. More stringent requirements may apply when recommending medical marijuana to a patient under 18 years of age. Absent rulemaking by the Colorado Dental Board or relevant case law to interpret the physical examination and other requirements in this law, which previously applied exclusively to physicians, it is still unclear how broad the physical examination must be and whether all required prerequisites to the medical marijuana recommendation would fall within the scope of dental practice.
The waters are also generally untested—both in the physician community and definitely in the dental community—regarding any malpractice liability claims that could be brought as a result of a medical marijuana recommendation. While the malpractice environment may not be any different for medical marijuana than any other experimental, scientifically controversial or non-FDA approved treatment, there is no legal precedent in this space. Literature specific to medical marijuana use in dentistry is still significantly lacking, complicating any potential defense. It’s also unclear currently if any dental liability carriers exclude coverage for medical marijuana recommendations under their policies or require additional coverage riders for this practice. Checking with a liability carrier before engaging in the practice of recommending medical marijuana to patients is highly recommended.
Beyond all these considerations, while medical and recreational marijuana are legal in Colorado, there is still a federal prohibition against marijuana. State level defenses and protections may be insufficient if a federal action were pursued against a dentist. In addition, dentists recommending medical marijuana for a disabling medical condition have a lower level of state protection (statutory) than physicians recommending for a debilitating medical condition (constitutional), which may have relevance and create added exposure in a federal lawsuit.
Recreational Marijuana
In Colorado, recreational marijuana is also an option available to adult patients in managing pain. However, dentists should exercise significant caution in recommending use of recreational marijuana as there is no law, rule, policy or case law that supports allowing this type of recommendation for dental pain control. Many of the same cautions related to medical marijuana recommendations also apply to recreational marijuana recommendations. However, the statutory protections that extend to medical marijuana recommendations would not likely carry over to a healthcare provider’s recommendation for the use of recreational marijuana.
The CDA is working to convene a study group that will further examine the literature on medical marijuana applications in dentistry and develop new organizational recommendations in this area. The CDA study group may also make recommendations for future policy change to address current limitations in the Colorado policy space. In the meantime, dentists who choose to recommend medical marijuana should be mindful to follow all state requirements and exercise significant caution in this area.
Jennifer Goodrum is a principal at Michael Best Strategies, LLC. Contact her at 720-398-0058 or jbgoodrum@michaelbeststrategies.com.