Health Law Pointers
Volume XIX, No. 3
September 1, 2017
Lawrence M. Ross
Nicholas A. Pusateri
As a public service, we are pleased to present this issue of our health law newsletter addressing the legal concerns of health practitioners. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail or call the Editor, Lawrence M. Ross, at (716) 849-8900.
A Professional’s Duty Concerning an Inebriated Patient
Health professionals are asked to perform many tasks in today’s healthcare environment, from evaluating a patient’s medical conditions to assessing his or her need for medical services, informing the patient of the available choices and attendant risks, coordinating care among the specialists and providing professional services in a caring and competent manner. In some instances, the health professional is mandated by law to perform a public service such as reporting suspected instances of child abuse or the presence of infectious diseases.
All would agree that your patient’s health and well-being is paramount. What, then, if you suspect a patient poses a risk of harm to the public? Do you have an obligation in New York to take affirmative action to restrain the patient or report that patient to the authorities? The answer may depend on the specific facts and circumstances.
Bob has been a patient of the practice for some time. At his annual physical examination, you notice that Bob’s speech is slurred and disjointed, he appears wobbly, and he has a strong odor of alcohol on his breath. Bob admits to having had a few drinks earlier in the day but denies he is drunk and refuses to submit to a breathalyzer exam. When you learn that Bob intends to go grocery shopping after the appointment, you are concerned and offer to call Bob a cab. Bob declines any assistance and gets ready to leave.
Your First Inclination? Is to take Bob’s car keys away or call the police to intervene but there are concerns about the legal consequences of doing so. However, Bob is clearly intoxicated and could easily have an accident. Will you be held responsible for any injuries to Bob or the public?
Response: The involuntary detention of your patient would have unwanted legal consequences with criminal and/or civil repercussions. There is New York case law to the effect that a physician lacks the authority to restrain a patient unless the patient is an alcoholic and is demonstrably dangerous to him/herself or the community, as a patient has the legal right to drink.
Your Second Inclination? Is to notify the police that Bob is a patient of your practice who arrived at this appointment drunk and is about to leave your office in his vehicle, and ask the police to intervene.
Response: This would be a mistake. As a licensed professional, you have a duty of confidentiality to your patient. Under the State Education Law, it is professional misconduct to reveal personally identifiable information about your patients to others without that patient’s consent if the information is obtained in a professional capacity. What is more, telling the police that Bob is a patient of your practice is a violation of the HIPAA privacy rule governing the confidentiality of protected health information.
Your Third Inclination? Is that you may be liable for Bob’s injuries if he left the office, wandered off into the street, was hit by a car and paralyzed.
Response: Existing NYS case law would suggest that you are not responsible. In Kowalski v. St. Frances Hospital & Health Centers, a 2012 decision by New York’s highest court, a patient lost patience and decided to leave the hospital building hours after looking to voluntarily check himself into the detox program while severely intoxicated. A nurse suggested that the patient call a friend to come get him. He agreed and the nurse went to tell the doctor he was leaving. The nurse and doctor returned to find the patient gone. The nurse wanted to call the police but the doctor said no. The patient, upon leaving the hospital, was hit by a car and left paralyzed when he wandered into a road. He then sued the hospital, doctor and others, arguing that they were responsible for his injuries for not restraining him at the hospital. He lost the suit, however, because the Court said that the hospital lacked authority to involuntarily detain him.
Bob again arrives at your office seemingly drunk, but this time has brought his 8 year old daughter, Olivia, with him to the appointment. Has this fact made a difference in our analysis?
Response: Yes. The State Social Services Law makes you a mandated reporter of suspected child abuse which, for this purpose, includes neglecting a child. If challenged by a law enforcement official, Bob is likely to be charged under the law with endangering the welfare of his child when, in an impaired state, he attempts to work the accelerator and brake system in his car, particularly if he shows signs of blurry eyes and slurred speech, and is found to have a high BAC. Other drugs, even over-the-counter medications, may provide probable cause for an arrest. As a result, if you believe in good faith that Bob is impaired and have a reasonable basis for assuming Bob is about to drive Olivia in his car, it would appear that notifying the appropriate child protective services would offer immunity from any liability that might otherwise result from your report of Bob’s actions.
Recent Developments in New York State’s Medical Marijuana Program
In July 2014, New York State enacted a law known as the “Compassionate Care Act,” making it legal for certain medical practitioners to prescribe marijuana to their patients. Currently, 29 states and the District of Columbia have legalized marijuana for medical use. New York’s program, however, has gotten off to a slow start. It has been roundly criticized for being unduly restrictive, failing to provide patients with meaningful access to the marijuana products and being one of the most expensive places for patients to buy the medicine. This may now change. Recent expansion of the program and additional changes proposed by the New York State Department of Health (NYSDOH) and the New York Legislature indicate that State representatives are working hard to get the program off the ground.
In late March of this year, NYSDOH added “chronic pain” to the existing list of qualifying conditions suitable for a cannabis prescription. Since then, the number of patients certified under the program has risen to around 27,000, representing nearly an eighty percent increase. Moreover, in early May, NYSDOH posted a publicly-accessible list of practitioners registered to prescribe medical marijuana. The prior absence of such a list made it difficult for patients that wanted the medicine to locate practitioners willing and able of prescribing it (see the list here). New rules also expand the categories of permissible practitioners that can register to prescribe marijuana to include physicians’ assistants and nurse practitioners (provided their supervising practitioners are also registered), which is expected to make prescriptions for medical marijuana more accessible.
A few of the more recent developments in this area are summarized below:
NYSDOH Announces New Regulations to Improve the Program.
Just last month, on August 23rd, NYSDOH published in the New York State Register a new set of proposed regulations aimed at improving the program experience for patients, practitioners, manufacturers and dispensaries. The new regulations are subject to a 30-day public comment period. If adopted in their current form, the new regulations will (i) permit the sale of additional medical marijuana products, (ii) provide an improved experience for patients and visitors at dispensing facilities, and (iii) shorten the training courses for prospective practitioners who wish to register with the State to prescribe cannabis (see the proposed regulations here).
Currently, medical marijuana can only be distributed as vape pens, tinctures, cannabis-extract oil and oil-filled capsules (smokable medical marijuana is not permitted). The new regulations significantly expand the types of cannabis products allowed to include solid and semisolid preparations, such as chewable and effervescent tablets and lozenges, and topicals, such as lotions, ointments and patches. Proponents of the regulations argue that edible cannabis preparations are more suitable for patients that require long-lasting medicine.
Moreover, based on feedback from practitioners, the proposed regulations offer shorter versions of the training course that practitioners are required to take before certifying their patients for medical marijuana use. NYSDOH will work with course providers to offer a two-hour course, similar in length to other medical education courses.
Medical marijuana dispensaries are also made more accessible under the new regulations. Presently, only staff, patients and caregivers are permitted to enter dispensaries without written approval from the State. The new regulations, however, relax the rules with respect to visitors. For example, prospective patients and practitioners interested in the medical marijuana program will be allowed to enter a dispensary and speak directly with an employee to get information about products and the program. Moreover, the new rules permit loved ones of seriously ill and disabled patients to accompany them to the dispensary to pick up their medicine, a function currently limited to those patients’ registered caregivers. This should not only make access to cannabis easier for patients, but it should also ease the burdens on registered caregivers.
The new regulations make a number of other miscellaneous changes to help enhance the medical marijuana program’s functionality, such as broadening the capability of manufacturers and dispensaries to advertise, streamlining the manufacturing requirements for marijuana products, amending security requirements and clarifying laboratory testing methods.
NYSDOH Licenses Five New Manufacturers of Medical Marijuana.
On August 1st, NYSDOH announced that it authorized five additional registered organizations (“ROs”) to manufacture and dispense medical marijuana in New York State, doubling the total number of State-licensed ROs. The initiative is aimed at improving (i) patient access to medicine and (ii) the geographic distribution of dispensing facilities across the State. NYSDOH expects that the increase in ROs will improve the affordability of medical marijuana by increasing the variety of products available to patients and broadening competition.
The addition of the new ROs is a dramatic expansion of the medical marijuana program’s physical footprint. Since each RO can operate up to four product dispensaries (i.e., retail locations), the maximum number of statewide dispensaries potentially may expand to 40 locations if each RO chooses to take full advantage of their satellite sites. Moreover, up to now the existing retail locations have largely been centered in densely populated areas, but with five more ROs, medical marijuana retail locations are expected to expand across the State. Two of the new ROs, New York Canna (d/b/a/ Terradiol New York) and Fiorello Pharmaceuticals, have announced plans to open dispensing facilities in Erie County and Monroe County, respectively.
New York Legislature Passes a Bill that Includes PTSD as a Qualifying Condition.
On June 20th, the New York State Senate passed a bill to expand New York State’s medical marijuana program to cover sufferers of post-traumatic stress disorder (PTSD). The bill had already been approved by the New York State Assembly, which means it will now go to the Governor for his approval. Of the 29 states’ medical marijuana programs, New York is the only program that does not cover PTSD. The bill is aimed primarily at veterans and seeks to offer them an alternative to stronger, more addictive drugs used to treat the condition, such as Valium and Ativan. The measure is not limited to veterans, however, so others that suffer from PTSD—including firefighters, police officers and victims of domestic violence or sexual assault—would also be eligible for medical marijuana as a treatment.
Whether the bill will be signed into law by Governor Cuomo remains uncertain. Publicly, Governor Cuomo has been cautious with respect to medical marijuana, saying that he wants New York to start slowly. He is expected to review the bill before the end of the summer.
 The other ten qualifying conditions are cancer, HIV infection or AIDS, amyotrophic lateral sclerosis (ALS), Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies and Huntington's disease.