CBD oil and physician liability

August 4, 2020

Prescribing CBD oil still is relatively unexplored territory for physicians in terms of legal liability. But medical boards want clarity.

Cannabidiol oil (CBD), a cannabinoid derived from cannabis that doesn’t create the “high” associated with marijuana since it lacks the cannabinoid THC, is gaining interest among health practitioners for its long list of potential benefits.

CBD oil for pain is one of the most widely discussed medical uses for the oil, although the list is much longer and includes seizure reduction, cancer treatment, anxiety relief and more cosmetic purposes such as acne reduction, among others.

There are three main issues with CBD oil for physicians who might prescribe it, however. First, cannabis and CBD oil remain illegal under federal law since it is classified as a schedule 1 drug under the Controlled Substances Act. More than 23 states have decriminalized its use for medical purposes, but this still comes in conflict with federal law and the Drug Enforcement Agency. Going near CBD oil in a healthcare setting is tricky.

Second, its status as an illegal substance makes it hard to test and run clinical trials that definitively prove its medical efficacy. This creates a vicious circle where marijuana and CBD are not fully legal because there is no data on its safety and efficacy, and its medical use in not proven because there is not enough testing due to being illegal.

Then there’s the liability of prescribing CBD oil and any product related to cannabis. Does the regulatory environment and the risk of malpractice outweigh the benefits for patients? This article will focus on this third challenge related to CBD oil for medical use.

Clarity Wanted

Currently, prescribing CBD oil still is relatively unexplored territory for physicians in terms of legal liability. But medical boards want clarity.

In 2016, the Federation of State Medical Boards (FSMB) surveyed member boards regarding the issues related to cannabis and medical regulation. The survey found that the issues most important to board about CBD and marijuana included guidance on handling recreational use by physicians (31.4%), guidance on handling marijuana products for medical use by physicians (47.1%), and model guidelines for recommending marijuana products for medical purposes to patients (49.0%).

The trouble is that CBD oil, despite its potential medical benefits, lacks the certainty of an FDA-approved drug. The legal framework for that just isn’t there yet, which puts physicians in a bind.

To reduce the risk of liability, however, the FSMB has developed some guidelines for the recommendation of cannabis and cannabinoids such as CBD oil in medical settings as part of its Workgroup on Marijuana and Medical Regulation.

Guidelines for Minimizing Liability Around CBD Oil Recommendation

The FSMB workgroup recommends several conditions for safeguarding the ethical recommendation of cannabis-based products such as CBD oil for medical use.

1. Establish a Preexisting Medical Relationship with the Patient

To avoid questions of inappropriate prescription of CBD oil for medical conditions, the FSMB recommends that physicians first make sure they have a documented, existing medical relationship with the patient before recommending products such as CBD oil.

Consistent with prevailing ethical standards, physicians also should not recommend, attest or authorize CBD oil for themselves or family members.

2. Documented Patient Evaluation

A second key to reducing liability around recommending CBD oil for medical use suggested by the workgroup is taking extra pains to document that an in-person medical evaluation and collection of relevant medical history is performed before considering if CBD oil is appropriate for the patient.

While less applicable to CBD oil because it lacks the high of THC that is present in medical marijuana prescriptions, physicians should nonetheless also ensure the patient does not have a history of substance abuse. This ensures that physicians are covering their bases even if THC is not present in CBD oil.

3. Advise and Decide Together with the Patient

Physicians should discuss the risks and benefits of CBD oil with the patient before making a recommendation because CBD oil is clinically unproven and lacks the standardization present with many other potential treatments, according the FSMB workgroup.

This is key for minimizing the potential for liability because then the choice is not made by the doctor alone, shifting responsibility. It also is important because due to the current legalities of cannabis-related treatments, physicians cannot actually prescribe CBD oil—they can only recommend it as a possible treatment.

4. Include a Treatment Agreement

Physicians that recommend CBD oil should also document alternative options available to the patient in the form of a treatment agreement.

  • Review of other measures attempted to ease the suffering caused by the terminal or debilitating medical condition that do not involve the recommendation of CBD oil.
  • Advice about other options for managing the terminal or debilitating medical condition.
  • Determination that the patient with a terminal or debilitating medical condition may benefit from the recommendation of CBD oil.
  • Advice about the potential risks of the medical use of CBD oil, including the variability of quality and concentration of CBD oil.
  • Additional diagnostic evaluations or other planned treatments.
  • A specific duration for the CBD oil authorization for a period.
  • A specific ongoing treatment plan as medically appropriate.

5. Avoid Any Other Relationship with Cannabis-based Products

Finally, one of the most important ways that physicians can reduce the potential liability from recommending CBD oil is by having a clear and impartial relationship to CBD oil and marijuana in general.

That means that doctors should not have a professional office at or near a marijuana dispensary or cultivation center, or receive compensation from or hold a financial interest in a CBD-related business.

By clearly demonstrating that the recommendation of CBD oil is for medical purposes and not based on personal considerations, physicians will help cut the liability associated with CBD recommendation.

That noted, there is no clear-cut way to completely reduce liability when recommending CBD oil to a patient any more than there is a way to completely eliminate the chances of malpractice when advising patients. Some potential for liability is inherent.

As the use of CBD oil and marijuana for medical purposes increased, and further standards and regulations develop, recommending it should become less legally fraught. Until then, reducing the potential risk of liability is the best that physicians can do in the case of CBD oil.

This article is for information only, and does not constitute legal advice.