Author(s): James L. Borin, Simeon R. Orlowski, Matthew S. LaBeau

1Mr. LaBeau is an Associate in the Firm’s Detroit Offices and can be reached at (313)446-1530 or mlabeau@garanlucow.com

GARAN LUCOW MILLER, P.C. ANN ARBOR • DETROIT • GRAND BLANC • GRAND RAPIDS • LANSING • MARQUETTE • PORT HURON • TRAVERSE CITY • TROY MERRILLVILLE, INDIANA FROM THE LAW OFFICES OF GARAN LUCOW MILLER, P.C.

Volume XXII, No. 26 October 18, 2010 LAW FAX

MICHIGAN LAW – BLUE | INDIANA LAW – RED

www.garanlucow.com Garan Lucow Miller, P.C. 1111 West Long Lake Road, Suite 300 Troy, Michigan 48098 248.641.7600 From the Co-Editors James L. Borin & Simeon R. Orlowski

PEOPLE v REDDEN PROVIDES GUIDANCE FOR NO-FAULT CLAIMS RELATED TO MEDICAL MARIJUANA CONTRIBUTOR – MATTHEW S. LaBEAU1

The Michigan Medical Marihuana Act (MMMA) was enacted into law on December 4, 2008. Since that time, there has been very little guidance on how to interpret the broad and vague provisions of this legislation. In the context of claims for No-Fault benefits, the Act left several unanswered questions regarding what benefits related to medical marijuana, if any, were payable. On September 14, 2010, the Michigan Court of Appeals issued, for publication, its opinion in People v. Robert Lee Redden, __ Mich. App. __ (2010), docket nos. 295809 and 295810. This is the first appellate decision that interprets specific provisions of the MMMA.

By way of background, for benefits related to medical marijuana to be compensable under the Michigan No-Fault Act, the treatment must be “reasonably necessary” under MCL 2“Caregiver,” as used in this article, refers to a person who has been named by a qualifying patient as the person who will assist them with the medical use of marijuana, as provided under the provisions of the MMMA. It does not refer to an attendant care or household services provider.

500.3107(a)(1) and “lawfully rendered” under MCL 500.3157. Since the language of the MMMA itself recognizes that medical marijuana is a beneficial treatment for certain medical conditions, the “lawfully rendered” requirement is the primary inquiry. Therefore, the specific provisions of the MMMA must be analyzed to determine what is legal under the Act.

Under the MMMA, a “qualifying patient” may possess a certain amount of usable marijuana or marijuana plants if he or she possesses a registry identification card. To be a “qualifying patient,” a person must be diagnosed by a physician as having a “debilitating medical condition.” Under the Act, a “debilitating medical condition” is essentially any condition that produces certain enumerated symptoms, including severe and chronic pain, seizures, nausea, and muscle spasms. To obtain a registry identification card, a patient must submit a written certification from a physician indicating that the patient is likely to receive a palliative or therapeutic benefit from the medical use of marijuana. A qualifying patient can also specify a primary caregiver2 to assist in cultivating the plants.

While the main opinion in Redden provides some guidance, the opinion is more notable for its concurrence. The main opinion involves two individuals, Robert Lee Redden and Torey Alison Clark. Mr. Redden and Ms. Clark had their home raided by the Madison Heights Police Department. During the search, officers found three bags of marijuana and 21 marijuana plants. Mr. Redden and Ms. Clark also turned over a written certification from Dr. Eric Eisenbud purporting to support Redden and Clark’s medical use of marijuana. Redden and Clark raised the medical use of marijuana as an affirmative defense to the criminal prosecution against them, and the case was dismissed the district court. The prosecutor appealed to the circuit court which then reversed the district court. Redden and Clark further appealed.

The Michigan Court of Appeals affirmed the circuit court’s ruling. Under the Michigan Medical Marihuana Act, a written certification for medical marijuana may only be issued by a physician “after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship.” In the Redden case, Dr. Eisenbud testified that he was board certified in opthalmology. Dr. Eisenbud also acknowledged that his sole employment was providing medical marijuana certifications. He had only seen Redden and Clark one time, and would not see them again until it was time to renew their documentation. Dr. Eisenbud refused to divulge the identity of Redden and Clark’s purported debilitating medical condition, only indicating they were suffering from “pain” and “nausea.” The majority found that, while statute did not define the meaning of a “bona fide physician-patient relationship,” the facts of this case gave rise to a question of fact as to whether Dr. Eisenbud had a bona fide physician patient relationship with Redden and Clark. Therefore, the charges against Redden and Clark should not have been dismissed.

Judge Peter O’Connell issued a concurring opinion. Judge O’Connell noted that the MMMA was inartfully drafted, subject to different interpretations, and had created much confusion throughout the legal and medical community. Therefore, he issued an opinion that attempted to establish a framework for the law and address issues that had not been resolved by the courts.

While Judge O’Connell’s opinion is not binding precedent, it is persuasive authority for a trial court in interpreting the provisions of the MMMA.

From Judge O’Connell’s concurrence, we can glean the following: • It is still illegal under all circumstances to sell or purchase marijuana. The MMMA only legalizes possession, use, and cultivation of marijuana. • Only the person that the qualifying patient names as his or her primary caregiver on his/her registration form can receive compensation for costs associated with assisting a patient with the medical use of marijuana. • With regard to compensation for costs by a primary caregiver, the primary caregiver may receive reimbursement for monetary expenses incurred in the course of assisting a qualifying patient in the medical use of marijuana. • The Act does not authorize compensation to a primary caregiver for the labor in cultivating marijuana, or for otherwise assisting the qualifying patient in its use, nor does it indicate that the primary caregiver may profit financially from this role.

In light of Judge O’Connell’s concurrence, No-Fault carriers should not reimburse claimants for the purchase of marijuana. This includes usable marijuana, marijuana plants, or marijuana seeds. This also includes the sale of marijuana by a primary caregiver to a patient, since the caregiver is technically taking care of the patient’s own marijuana plants. No-Fault carriers should also not be paying attendant care type claims for medical marijuana caregivers. No-Fault carriers can only reimburse costs associated with assisting the patient with his or her medical use of marijuana. An example of such a cost would be a grow lamp or other materials to assist with growing the marijuana plants. Since it is lawful under the Act to provide paraphernalia to a caregiver or qualifying patient, items used for consumption of medical marijuana would be compensable under the No-Fault Act.

From a documentation standpoint, it is imperative for a carrier to obtain the patient and caregiver’s registry identification card. The documents submitted to the state by the patient or caregiver should also be obtained. This will allow the carrier to assess the nature of the patient’s debilitating medical condition, its relatedness to the subject motor vehicle accident, and assess the quality and credibility of the written certification provided by a physician in support of the medical use of marijuana. This will also allow the carrier to determine which individual has been identified as the primary caregiver, as that individual is the only caregiver entitled to reimbursement of costs. If there is any question as to the credibility or relatedness of the claimant’s debilitating medical condition, then the claimant should be submitted for an independent medical examination.

Unfortunately, it is impossible to anticipate the various claims that may be submitted for the medical use of marijuana. The Redden opinion certainly helps to clarify some ambiguity in the MMMA. As we navigate the uncharted waters of the Michigan Medical Marihuana Act and its

interplay with the Michigan No-Fault Act, please feel free to contact the attorneys at Garan Lucow Miller, P.C. We would be glad to advise you on these unique claims.

**********************************************

Upcoming Seminars WINDY CITY SEMINAR Thursday, November 4, 2010 at the DoubleTree Hotel in Arlington Heights, Illinois. Agenda as follows:

8:30 – 8:55 a.m. CONTINENTAL BREAKFAST / REGISTRATION

8:55 – 9:00 a.m. WELCOME AND INTRODUCTION

Speaker: DAVID A. COUCH 9:00 – 9:25 a.m. MICHIGAN THIRD PARTY AUTOMOBILE NEGLIGENCE UPDATES

Speaker: DAVID A. COUCH *The Michigan Supreme Court’s controversial opinion in McCormick v. Carrier and recent Court of Appeals opinions since the overruling of Kreiner v Fischer. What does it mean for auto insurers in Michigan?

9:25 – 9:45 a.m. USING SOCIAL NETWORKING SITES AS A DISCOVERY TOOL Speaker: DAVID A. COUCH *Where to discover impeachment material and how to best use it to the advantage of your case.

9:45 – 10:30 a.m. MICHIGAN FIRST PARTY NO FAULT (PIP) – THE YEAR IN REVIEW Speaker: EDWARD M. FREELAND *Recent cases involving the Statute of Limitations, Medical Causation, Attendant Care, Wage Loss and the Parked Vehicle Exclusion.

10:30 – 10:40 a.m. BREAK

10:40 – 11:25 a.m. HANDLING OF MI AUTO NO FAULT CATASTROPHIC CLAIMS Speaker: DAVID N. CAMPOS *Housing, Transportation and Attendant Care 11:25 – 12:10 p.m. INDIANA LAW AND ILLINOIS LAW UPDATES

Speaker: GREGORY M. BOKOTA 12:10 – 12:30 P.M. QUESTION AND ANSWER SESSION RETURN EVALUATION FORMS

Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at Ecarty@garanlucow.com.