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Dosages And The Court Of Appeals


t-pain

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the court of appeals continues to think the law requires dosages from doctors or caregivers.

 

the michigan supreme court has shot this down once already (prescription ruling) on July 27, 2015.

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/14-15-Term-Opinions/148444%20and%20148971%20Opinion.pdf

 

Further, to the extent the Court of Appeals determined that a written certification was comparable to a pharmaceutical prescription, this determination was erroneous. A written certification is not similar to that of a pharmaceutical prescription. Marijuana is a Schedule 1 controlled substance. 87 Therefore, a doctor is not legally able to prescribe marijuana to an individual for any reason.

further, about dosages:

 

Indeed, the only instance in which a primary caregiver must

control a patient’s dosage is when he or she is the parent of a minor patient. 81 That the statute requires these particular caregivers to control a patient’s dosage, but does not require it of others, indicates that all other caregivers need not be particularly aware of their patients’ medical needs. Instead, a primary caregiver may reasonably rely on the amount his or her patient states is needed to treat the patient’s debilitating medical condition.

while this ruling is not talking specifically about section8 prong about what is "reasonably necessary", its crystal clear that a patient must merely state that to appease the law.

 

of course the MSC did such a bad ruling on tut/wick that no one can figure out what evidence is required to convince a jury what is "reasonably necessary".

 

so now we get this ruling from last year in sept from the coa:

 

http://www.michbar.org/file/opinions/appeals/2015/092215/60860.pdf

 

Defendant testified that he used approximately an ounce of marihuana per week and that

he had 17 plants growing in his home, which he planned on harvesting. He testified that he had

never grown marihuana before, that no one had really told him how to grow the plants, he had

not used any of the plants that were in his home yet, and he had no idea of what the potential

output or yield from a marihuana plant may be. Defendant thought, however, that he had enough

marihuana growing to hopefully treat his condition for a year.

 

 

Clearly, defendant had no idea whether the amount of marijuana in his possession was

“of a quantity of marihuana [that] was not more than was reasonably necessary” as that set forth

in § 8(a)(2). While he testified that he smoked about an ounce per week, he did not testify that

this amount was reasonably necessary to treat his condition. The identification of a proper

treating medication and dosage is a matter that would benefit from the testimony of medical

personnel. Moreover, assuming that this amount was the proper amount to alleviate defendant’s

symptoms, defendant could not testify as to the amount of usable product that the 17 plants he

had in his possession would yield. Accordingly, at a minimum, questions of fact existed as to

whether defendant was in possession of a quantity of marihuana that was not more that was

reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of

treating or alleviating the symptoms of his condition.

i'll edit this later and add my opinion when i figure out exactly wtf is going on.

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the court of appeals continues to think the law requires dosages from doctors or caregivers.

 

the michigan supreme court has shot this down once already (prescription ruling) on July 27, 2015.

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/14-15-Term-Opinions/148444%20and%20148971%20Opinion.pdf

 

 

further, about dosages:

If MILegalize passes will this not become a mute point as we will be able to grow 12 plants for recreational too??

Farmer Brown

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There are several things that stick out with that CoA case. First, I don’t think this guy is completely legit for a few reasons. If you are in so much pain that you need medical marijuana, you are most likely going to try something other than over-the-counter NSAIDs beforehand. Even more so when you claim four ounces are needed every month to control the pain. What makes this problematic is that he further claims to go without it for work and seeing his daughter (with no other treatment); again, demonstrating that his pain is not debilitating or chronic. Maybe that is just my opinion… that you should not be able to work or function regularly with an untreated debilitating condition.

 

Defendant and the doctor were unable to provide any medical records regarding defendant’s condition other than the ‘physician’s summary’ and a document explaining that defendant and the doctor agreed on treating defendant’s condition with marijuana. In fact, the doctor was unable to provide any medical records upon which he relied and admitted that his clinic needed to improve in its document retention.”

 

“… defendant testified that he was able to overcome his condition and not use marihuana when his daughter was present or during work hours.”

 

“The doctor was not qualified as an expert in any area, including that of TMJ or medical marihuana.  In fact, the doctor admitted that he had no formal training with medical marihuana and knew of no studies that supported its use, ‘but . . . would very much like to find out.’”

 

It seems that the doctor had no right certifying this individual (or anyone else). No medical records, no experience with MMJ, no experience with this condition (TMJ), no evidence of a serious or debilitating condition, ect. At the very least, this guy should have used common sense and stayed within section 4 limits. CoA is a joke however, so it’s not even worth digging into their non-sense unless you want to increase your BP. I will say that when I had my own court case for illegal transport (I was charged with two possessions), I wrote an affidavit stating how much I needed on a daily basis to treat my medical condition. I also had to get a letter from the doctor who certified me for the judge. This was a section 4 defense which succeeded in Troy district court.

Edited by Alphabob
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also, mj is schedule 1 and no dr is trained in it. the coa is making bunny muffin up...

 

why you would believe the coa is a mystery.

 

the coa will make up any reason to deny patients protections. that's why they have been reversed in every mmma case by the msc.

 

show me in the law where a dr has to be trained or have experience with mmj.

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It is true that CoA is just making stuff up and probably misrepresenting things, but from the defendant and doctor statements I feel like there are significant holes in the defense. Obviously no doctor is going have formal training on medical marijuana; maybe formal research but not training. What they should have are references to studies in pain management or other diseases, otherwise how can they know that it may provide some medical benefit? It only takes a few hours to google and put something together; I've found over 50 articles related to arthritis alone. My certifying doctor has 30-60 pg pamphlets on his website for various diseases full of references. I've seen them turn many people away while waiting because they did not have sufficient documents supporting a severe or debilitating condition, they also keep all records.

 

I think MJ should be legal and used for whatever, but some people are using MMJ for minor or fake pain (or selling it). Maybe this guy has a huge pain tolerance and manages to push through 7-8 hours a day of work with no treatments, but I find that very unlikely. It's also unlikely for someone with a serious or debilitating condition to find a doctor, apply for a MMJ card, wait several weeks, grow their meds over several months and finally dry it for use rather than seek more extensive conventional care first. I guess anything is possible but my gut says this guy had more of a minor ailment rather than serious or debilitating condition, and I usually take the side of defendants.

Edited by Alphabob
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“… defendant testified that he was able to overcome his condition and not use marihuana when his daughter was present or during work hours.”

 

i dont know why you bolded this. many patients have to live with their pain 24/7 and cannot medicate at work or school or in front of kids etc.

 

Maybe that is just my opinion… that you should not be able to work or function regularly with an untreated debilitating condition.

maybe you should look up the definition of debilitating in our act. not dictionary.

 

(4) If the patient has given permission, the physician has notified the patient's primary care physician of the patient's debilitating medical condition and certification for the use of medical marihuana to treat that condition.

 

(b) "Debilitating medical condition" means 1 or more of the following:

 

(2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

it doesnt say that the pain has to be debilitating, only severe and chronic.

 

chron·ic/ˈkränik/adjective

(of an illness) persisting for a long time or constantly recurring.

 

 

 

 

i dont mean to pick on you alphabob. but the coa also conceals a lot of bunny muffin, i think the transcript would probably clear it up

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Jeeze. We've been over this ground before. Sure we know that COA Judges have their heads in their azzes. Yep we know that the law does not require that caregivers be responsible for dosage and/or titration. While your point is a great sentiment, where do you take it from here?

I Had hoped that it were not nessary again, but since you mention.it, the SC laid out the law in pretty stark termshttp://michiganmedicalmarijuana.org/blog/584/entry-1163-added-evidentiary-protection-with-or-without-registration/

Edited by GregS
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 Crap, I'm too darn old for this computer stuff, can't even get my statement in the right place,red faced old farmer here!!!

Farmer Brown

Your fine, where did you want your reply on top of it or in it?

 

I didnt see anything wrong,  Just put a blue and white shirt on to match your red face and you will be a patriotic farmer! :blow-a-heart:

 

Peace

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It is true that CoA is just making stuff up and probably misrepresenting things, but from the defendant and doctor statements I feel like there are significant holes in the defense. Obviously no doctor is going have formal training on medical marijuana; maybe formal research but not training. What they should have are references to studies in pain management or other diseases, otherwise how can they know that it may provide some medical benefit? It only takes a few hours to google and put something together; I've found over 50 articles related to arthritis alone. My certifying doctor has 30-60 pg pamphlets on his website for various diseases full of references. I've seen them turn many people away while waiting because they did not have sufficient documents supporting a severe or debilitating condition, they also keep all records.

 

I think MJ should be legal and used for whatever, but some people are using MMJ for minor or fake pain (or selling it). Maybe this guy has a huge pain tolerance and manages to push through 7-8 hours a day of work with no treatments, but I find that very unlikely. It's also unlikely for someone with a serious or debilitating condition to find a doctor, apply for a MMJ card, wait several weeks, grow their meds over several months and finally dry it for use rather than seek more extensive conventional care first. I guess anything is possible but my gut says this guy had more of a minor ailment rather than serious or debilitating condition, and I usually take the side of defendants.

I do agree with most of what you say, But,,,,,,,you cant judge peoples pain by how they look or what they do, I have lived in pain since may 30 of 98, daily pain, major daily pain, after my auto accident I truly  had a hard time driving a stick, I most def couldnt mow the lawn or do the dishes, I couldnt sleep in a bed,  I most def could not do my job any longer, oh I could do it but people dont have time for how long it would take me to do it, and I couldnt afford to hire all the help I needed to make up for what I could no longer do!

 

I can have my cannabutter in the evening on noodles, or veggies or anything, and when I wake up the next day Im still feeling the effects of the pain releif I recieve from it, when I do my own medibles they work for a few days for pain, if I hit a joint or bowl it hits me hard in like 2 puffs for quite a few days after my medible.

 

It takes me 4 0z's for 2lbs of butter, how long does a lb of butter last in your house?  I have a friend with cancer who easily smokes a 1/4 lb a week and that dont include the oil's and butter and treats we make for him.

 

Some people require more than others to get the disired efffect, my medibles make me silly for an hr or 2 after I use it, ,so I try to use it early in the morning so the buzz is not so bad when I have to think and do my normal daily living and chores!

 

It takes people different amounts of any kind of meds, some people can make do with little some cant!

 

And it is not the cure all for every one!

 

 

Peace

Jim

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I have no doubt that CoA conceals stuff. For example, the guy likely had a ‘physicians summary’ from a regular diagnosing doctor rather than the certifying but they didn’t word it that way. I know many certifying doctors would not approve someone with just that. I needed a physician’s summary with diagnosis and blood tests before my doctor approved me. Others needed some type of diagnostic imaging because they wouldn’t approve just anyone walking in there claiming a debilitating condition even if they had a ‘physicians summary’.

 

Although it does not say debilitating pain, it is implied by listing it under debilitating medical conditions. I think most judges would interpret this as meaning the medical condition must be debilitating in some way and this is reinforced by the usage of ‘severe’ and ‘chronic’ under pain. Typically, severe pain is around a 7 on the pain scale. The vast majority of people cannot function normally in this type of chronic pain without any treatment. For example, here is a typical description of severe pain:

 

7 – Severe pain that dominates your senses and significantly limits your ability to perform normal daily activities or maintain social relationships. Interferes with sleep.

 

The reason why I disagree with this guy having severe pain is because very few people would just sit there and only try aspirin before turning to MMJ. Very few people by definition would be able to have a normal life, normal workdays, ect. with untreated severe and chronic pain. Most people cannot use MMJ 24/7, but they have conventional medications that help close the gap during work hours and such. This guy was taking nothing else and made no efforts for additional conventional treatment over the years he had the problem; that doesn’t seem ‘severe’ to me. But who knows, maybe I’m just biased from knowing too many people that got their cards without any real medical condition. I would have nothing against that other than the courts now thinking the whole thing is a sham and making patients jump through a million hoops to get a simple section 4. I believe my judge called them ‘drive through clinics’.

 

@phaquetoo, I completely agree as I have been living with severe and chronic pain for nearly half my life. IBS, rheumatoid arthritis, bone tumor compressing nerve roots in neck; I didn’t even have to do anything for my problems. I can’t really argue with this guys consumption amount without knowing the quality and such. I use to vap around an 8th every day when I was using brickweed, now I’m at half Oz every month with a little hash on top so quality does matter.

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. . . because very few people would just sit there and only try aspirin before turning to MMJ. Very few people by definition would be able to have a normal life, normal workdays, ect. with untreated severe and chronic pain. Most people cannot use MMJ 24/7, but they have conventional medications that help close the gap during work hours and such. This guy was taking nothing else and made no efforts for additional conventional treatment over the years he had the problem; that doesn’t seem ‘severe’ to me.

 

Does that mean that you think people should be required to use pain meds like opioids before trying cannabis? Why do you assume that those hadn't been used? They may have been tried but without success or the side effects were too troublesome.

 

“… defendant testified that he was able to overcome his condition and not use marihuana when his daughter was present or during work hours.”

 

Perhaps he was able to overcome his condition by using Vicoden or some other pain med when working or when he was with his daughter. It doesn't really matter how he overcame his pain, maybe he just clenched his teeth and made it look like a smile.

 

Everyone reacts to pain differently and not all pain is the same. What might be unbearable for me might not seem so bad to you.

 

Pain can be situational also. He may work at a desk all day and sitting is comfortable for him. It might not hurt too badly until he gets up on his feet. Too many factors in play to make a snap judgement.

 

Unless you're a Court of Appeals judge then you know what the outcome will be before you hear the evidence.

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I do not think he tried opioids or anything beyond over-the-counter NSAIDs:

 

“He stated that he first tried over-the-counter medicine like aspirin and ibuprofin, and that when that did not help, he got his medical marihuana card but never tried any other form of treatment.”

 

Opioids would not necessarily be the next step. There are stronger anti-inflammatory drugs that could have been tried as the symptoms of TMJ are often related to inflammation. TMJ rarely causes debilitating symptoms, most of the time it is a minor ailment that responds to home-remedies or OTC NSAIDs.  

 

Temporomandibular joint (TMJ) syndrome often responds to home remedies, including ice packs to the joint, over-the-counter nonsteroidal anti-inflammatory drugs (NSAIDs), avoiding chewing gum, massage or gentle stretches of the jaw and neck, and stress reduction. When home treatment does not work, medical treatment for temporomandibular joint (TMJ) syndrome includes dental splints, Botox injections, physical therapy, prescription medications, and in severe cases, surgery. The prognosis for TMJ syndrome is generally good as the disorder can usually be managed with self-care and home remedies. http://www.medicinenet.com/temporomandibular_joint_syndrome_tmj/article.htm

 

But consider someone who has a normal job and suddenly comes down with debilitating TMJ and OTC NSAIDs do not work. They are not going to wait months on a hunch that MMJ may be able to help them while they are unable to work or lead a normal life. Instead, they are going to try various non-OTC approaches to reduce the pain to a manageable level and possibly see various specialists. If those doctors noticed the severity of the problem, they would have prescribed opioids and possibly referred to a pain clinic. Instead nothing was done, leading me to believe that this guy used a non-debilitating condition as an excuse to become a MMJ patient. Why would you want to just live with a debilitating condition rather than getting it fixed? It's not like this guy had a permanent auto-immune disease or seizures, but instead a highly treatable condition.

 

* As a side note, I don't think it is 100% the patients fault if they got approved for a non-qualifying condition. It should be the doctors fault, but then again if we went after all the doctors with debatable certifications there would likely be no one left to certify us. Plus the MMMA allows medical use to be refuted if there is evidence that MMJ is not being used to treat a debilitating condition, which many fail to realize that simply having your card does not mean unconditional protection.

** In addition, I understand that people perceive pain differently. But severe pain is perceived the same by everyone, it is severe. It may take different circumstances to achieve severe pain for different people, but severe pain is debilitating pain that affects work and normal life activities. If someone can handle the pain and live a normal life, then it is not severe pain by definition.

Edited by Alphabob
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some people cant afford prescriptions. or drs visits. i was in drs office for my friend yesterday and some guy in there was telling me he was from up north where drs are charging $300 just to get in the door.

 

there aint much OTC except aspirin, tylenol, aleve, advil, ibuprofin etc. none of those help me with pain. they still work as fever reducer anti-inflammatory for me though which is nice when i have a fever.

 

what else to try? hmm... vioxx worked for my uncle, before they took it off the market due to causing heart attacks. celebrex?

 

https://en.wikipedia.org/wiki/Celecoxib

Side effects include a 37% increase in incidence of major vascular events, which include nonfatal myocardial infarction, nonfatal stroke, or death from a blood vessel-related cause.[3] Additionally, an 81% increase in incidence of upper gastrointestinal complications occurs, which include perforations, obstructions, or gastrointestinal bleeding as in all NSAIDs

so you're saying i have to try celebrex before non-toxic marijuana ?

where is that in the mmma that a patient MUST TRY ALL OTHER PHARMA DRUGS FIRST before marijuana?

 

 

thanks, but no thanks!

flower these poisons.

 

https://en.wikipedia.org/wiki/Rofecoxib

On March 11, 2009, Scott S. Reuben, former chief of acute pain at Baystate Medical Center, Springfield, Mass., revealed that data for 21 studies he had authored for the efficacy of the drug (along with others such as celecoxib) had been fabricated in order to augment the analgesic effects of the drugs.

... lol

 

 

fda and big pharma are not your friends.

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Not all prescription drugs carry serious risks like selective COX-2 inhibitors (Vioxx, Celecoxib, Mobic, ect). I started taking Mobic almost two years before being diagnosed with RA and it brought the pain from 7-8 to ~5. But then I found out the higher dose was causing kidney and liver damage, so I stopped taking it. After failing three more medications I relied solely on MMJ with a card for half a year while trying to get into a new specialist (and being arrested), although I had been taking dronabinol for 3-4 years prior and smoking up to 7 years for severe IBS pain. Some diseases have no treatment or take years to properly diagnose. I believe Crohn’s disease has on average four misdiagnoses before the right one, IBS being the most common.

 

The expectation varies depending on the situation, but generally you cannot get a card just because you are in pain; it must be severe, chronic and by definition debilitating. In this case he probably could have shown this by trying dental splints, physical therapy, prescription medicine, surgery if it was severe enough.. anything to show that it was serious or severe. Instead he only provided the opposite by saying he could manage to work and see his daughter without any treatment beyond the failed OTC NSAIDs attempt. He isn’t forced to take selective COX-2 inhibitors or opioids, there are safer anti-inflammatory drugs that are more powerful than OTC plus the non-drug options. Yes the health care system and FDA are corrupt, so everyone needs to be careful and read up on what they are putting into their bodies. I can’t argue whether health care availability was an issue or not in this case, but he had multiple options that involved no risk to his health. It is difficult for me to imagine someone in severe pain that does not seek immediate help regardless of costs, as in a couple days for extreme pain (9-10) or within weeks for severe pain (7-8). When you are in that much pain your preference for what pills you’re taking becomes less of a concern. I always said I wouldn't take opioids, but I never imagined what having cervical nerve roots compressed would feel like.

Edited by Alphabob
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there are safer anti-inflammatory drugs that are more powerful than OTC plus the non-drug options.

 

but he had multiple options that involved no risk to his health.

aspirin kills thousands of people each year.

 

pray tell, which prescription drug is safe?

 

anyways, sounds like you went through the ringer, alpha! stay healthy!

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Well selective COX-2 drugs are rather new and have given a bad name to NSAIDs due to insufficient studies prior to widespread use. This type of problem has become more common over the last few decades due to pharmaceutical companies pushing profits over safety and regulations. Older or mixed NSAIDs (COX-1 and 2) are generally safer with their main side effects being stomach upset or peptic ulcers. Aspirin was also over prescribed for a long time and caused thousands of deaths; it is usually safe at the proper dosage. In terms of pain management, there are weaker opioids that are not as addictive compared to the more commonly prescribed ones in chronic pain management. However bad it may be to take any opioid long-term, it is even worse to be in severe chronic pain for extended periods... chronic pain syndrome is no joke.

 

As much of a miracle drug that cannabis is, it can also have some negative-side effects. Some people are allergic to it as in anaphylactic shock. I knew of someone that was not deadly allergic, but would get facial swelling/redness along with other issues. Typically in medical studies there is also a small group that discontinues cannabis due to side-effects (5-10%). So there is really no drug that is 100% perfect and the FDA is not suppose to allow drugs where the positives fail to significantly out weight the negatives (but sometimes they do). It all depends on what works for you, how serious your disease is and the risk versus benefit of the drug. If your organs are slowly failing due to Lupus for example, you are going to take a much larger risk in the hope of slowing down a deadly disease.

Edited by Alphabob
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Jeeze. We've been over this ground before. Sure we know that COA Judges have their heads in their azzes. Yep we know that the law does not require that caregivers be responsible for dosage and/or titration. While your point is a great sentiment, where do you take it from here?

 

I Had hoped that it were not nessary again, but since you mention.it, the SC laid out the law in pretty stark termshttp://michiganmedicalmarijuana.org/blog/584/entry-1163-added-evidentiary-protection-with-or-without-registration/

did you see this paragraph from the same opinion in the OP?

 

Defendant also attempted to admit a letter purportedly written by one of his doctors;

however, the trial court found that such a letter was inadmissible hearsay. Defendant argued that

the trial court should accept this letter because “we did what we possibly could,” “we’re trying to

do everything we can,” and that it would be too expensive to bring in the doctor who wrote the

letter. These arguments simply do not address whether the letter is inadmissible hearsay. As

such, the trial court properly excluded this evidence.

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did you see this paragraph from the same opinion in the OP?

 

 

Would they have accepted an affidavit from his doctor?

 

Having them call it hearsay does make me wonder what it said and what additional circumstances were not being told. However I still believe that the patient and doctor messed up with their statements even if they had been taken out of context. He should have never admitted that he could manage to do some of the most demanding aspects of normal life (work and family) without any treatment including MMJ. The doctor should have never said that he knew of no studies or information relevant to treating the patient, which implied that he couldn't have had any idea as to whether the treatment would be beneficial or not.

 

If CoA is expecting the doctor to figure out the dosage they are simply crazy. But we all know the courts are not set up to be fair, they are set up to be run like a business similar to an assembly line or slaughter house.

Edited by Alphabob
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