Conservatives Warn Legislature That Doctor Immunity Will Lead to Recreational Pot

by John Gage

LINCOLN – Conservative state senators warned against lawmakers passing new medical marijuana regulations they say could usher in de facto recreational marijuana in Nebraska. The bill, proposed by State Sen. John Cavanaugh, would give doctors immunity for recommending medical marijuana.

The Unicameral voted to advance LB933 on Friday by a vote of 30-7, but conservative lawmakers who voted against the bill say it will result in a marijuana industry with few regulations. State Sen. Jared Storm said the bill effectively legalizes recreational marijuana in Nebraska.

“If they can give doctors immunity for recommending a schedule I drug, you now have recreational marijuana,” he said. Storm introduced an amendment to the bill that allowed doctors to have immunity to recommend marijuana if they did so “upon a preponderance of the current scientific evidence.”

Storm said without the amendment, doctors would be able to recommend marijuana to anyone and be held liable. The state senator gave the example of a doctor recommending marijuana to a pregnant woman, and it resulting in harm to an unborn child.

“Awful for women, awful for the state,” he said. “I want to make this clear – I am going to advocate for patients and their families.”

State Sen. Kathleen Kauth said that the bill was creating a regulatory framework that would be the loosest in the country. “The states around us, including Colorado, have tighter regulations than Nebraska,” she said. Storm’s amendment lost 22-19.

State Sen. John Cavanaugh, who introduced the bill, claimed the measure did not give doctors blanket immunity. “This is not a blanket immunity; this is a very targeted, specific immunity for recommendations,” he said.

The Legislature voted to approve a Health and Human Services amendment that states that doctors will be “subject to civil penalty or disciplinary action for failing to properly evaluate the medical condition of a patient or for otherwise violating the physician-patient standard of care.”

Storm said the wording of the legislation currently is not workable because similar language in other states has never allowed for a doctor to be held accountable for malpractice. The state senator said he has “yet to see one doctor that has been sued for malpractice” for recommending marijuana. Cavanaugh said he was not aware of any doctors who had been sued either.

“How is anyone going to get sued for malpractice if there’s no standard?” Storm said.

State Sen. Bob Anderson agreed that the state needed to introduce a medical standard if they wanted to pass regulations. Anderson said Cavanaugh’s bill “strips protections from patients.”

Cavanaugh Opposes Scientific Standard

Cavanaugh said he thought Storm’s amendment was a “creative solution,” but that he did not support it, saying he believed it would cause more uncertainty for doctors. Cavanaugh said that currently, he is unaware of any doctor who has recommended marijuana in the state because they are afraid of getting sued.

Storm said that it is because Nebraska doctors know there are potential negative effects to marijuana, and they do not want to be held accountable if it harms a patient. He said doctors should only be given immunity for following a standard of care.

Under a scientific standard, Storm said a doctor would have to evaluate a patient before giving a recommendation. “A doctor would actually have to bring people in and evaluate them, see if they are more susceptible to psychosis and psychotic breaks and all that stuff,” he said.

Storm said his amendment would put the state in line with opioid regulations, where he said doctors do not have blanket immunity to recommend the drug anymore, but patients can still access the drug if they really need it. Without scientific standard protections, Storm said “nutball” doctors would abuse the system.

“There will be nutball, one-off doctors in Omaha and Lincoln who will give recommendations for marijuana for $100 a piece all day long for anybody who lines up at the door,” he said. “If we are going to treat cannabis like a drug, like a medicine, because that is what the ballot initiative said. It said this is for medical use. If we are going to treat this like medicine, then doctors shouldn’t have blanket immunity for recommending medicine.”

John Gage is the executive editor of The Plains Sentinel.