Monday, February 2, 2015

The New Mexico Marijuana Case is Even Weirder Than You Think

Of all the states, who would have guessed that New Mexico would be the hotbed of medical marijuana court decisions?  Between the Vialpando v. Ben’s Auto. Servs., in May and the Maez v. Riley Industrial case, handed down earlier this month, New Mexico’s Court of Appeals appears to be one of the most pro-marijuana courts in the nation.

Back in May, when I first wrote about this issue, I wondered why the reasonableness and the necessity of the marijuana treatment was not questioned and our corporate counsel told me that surely there be additional case law to clarify this issue. 

Sure enough, the Court in Maez decided to take on the issue of the reasonableness and necessity of the marijuana treatment.  Mr. Maez suffered from an industrial accident and was being treated by Dr. Reeve.  Dr. Reeve had prescribed a variety of medications including several opioids and, as required for patients on long term opioid therapy, performed regular urine drug tests.  During one of those tests, Mr. Maez tested positive for marijuana.  Typically, recreational marijuana use, or the use of any illicit substance raises red flags with the prescriber.  But not Dr. Reeve! 

Dr. Reeve informed Mr. Maez that if he was going to use marijuana, he needed to have a medical marijuana license.  Luckily for Mr. Maez, Dr. Reeve was happy to provide him with one.  According to Dr. Reeve, “patients are going to use cannabis either one way or the other . . . if a patient requests that I sign [a license], I will sign it . . . but I’m not recommending . . . or in any way advocating for the use of medical cannabis.”  Dr. Reeve also considers the use of medical marijuana to be the patient’s decision “as it’s private and voluntary and it’s not overseen by a physician.”

So the guy ended up on a medical marijuana regimen due to a failed drug test.  That should be sufficient for the Court to find in favor of the payer, right? 

Nope.  And it gets worse. 

The Court went on to rationalize and interpret Dr. Reeve’s actions as reasonable and necessary stating that “[Dr. Reeve] adopted a treatment plan based on medical marijuana.  He would not have done so if it were an unreasonable treatment.”  Imagine if that logic was applied to all work comp medical treatment.  The doc says it’s reasonable… so it is.  State statutes and regulations have been evolving for over a decade to specifically counter this argument.   But not in New Mexico.    

And it gets even worse.

To take this determination one step further, since the physician said that it is Mr. Maez's decision to use medical marijuana, the Court, by default, has determined that the self-directed use of marijuana by this injured worker is reasonable and necessary because the physician signed off on it.  This is patient-directed care at its absolute worst. 

So, to recap what led to this decision: Illicit drug use, perpetrated by the injured worker, condoned by the doctor, and supported by a court of law.

I wish I could tell you that marijuana should be the least of your concerns, but if this is the specious logic to which we’re beholden… we’ll need better guidelines, better tools, and better lawyers.

On Twitter @PRIUM1


  1. WOW, all I can think of is God help us. Signing off without a solid medical foundation for doing so by a medical professional is the charts!

  2. Wow, now the patient not the doctor gets to decide course of treatment....we are all in big trouble!

  3. I would like to hear how the patient is doing now after choosing marijuana over opiods. I'm thinking there might be more to the rationale than what is mentioned here. I understand patients should not direct their treatment, but shouldn't be made to just take multiple opiods without being their own advocates and requesting an alternative if they feel it is better for them. Alternative methods of treatment should be discussed with your physician if it is something the injured worker would like to consider. How do we know this didn't happen in this case? We are only getting one side here. If the marijuana did help, I can see why that would be preferred over opiod addiction.

    1. I appreciate the comment. First of all, we should acknowledge that we don't just have "one side of the story." This was a case heard in a court of law and both sides had the opportunity to present a case. That said, there's no evidence in the case that suggests that medical marijuana was being used as an alternative to opioids. It appears as if this patient may be taking medical marijuana and opioids on an ongoing basis.

    2. I see. I guess I didn't read between the lines. Maybe "one side of the story" was not a good choice of words. I'm sure the transcript is lengthy and may have more rationale that what is mentioned is what I meant. I'm sure the end result was relayed in the short space provided. While I still think medical marijuana should be discussed as a consideration in some cases, using that AND opiods obviously would not be a good choice. Thank you for clarifying.

  4. I would like to hear from someone with legal knowledge and foundation, how does this injured worker while treating with legal marijuana return to work in a safe condition? I have yet to find an Human Resources or Legal resource that can answer this business/ employer situation.