A victory for patients

‘Intractable pain’ now qualifies for medical marijuana

Nev's Health Law

Neville M. Bilimoria

Neville M. Bilimoria is a partner in the health law practice group, in the Chicago office of Duane Morris.
NMBilimoria@duanemorris.com

March 2018

On Jan. 12, Cook County Circuit Judge Raymond Mitchell ordered the Illinois Department of Public Health, against its wishes, to add “intractable pain” as a qualifying condition for medical marijuana use. See Mednick v. Illinois Department of Public Health, 17 CH 6032. This was a huge victory for medical marijuana patients, eight days after U.S. Attorney General Jeff Sessions dropped a proverbial bomb on Jan. 4, stating that he would revoke the Cole Memo, opening the door for the possibility of stricter federal marijuana enforcement.

Besides being a victory for medical marijuana advocates, the Mednick decision also highlights the fascinating politics behind this entire proceeding, and its importance for cannabis patients nationwide.

The patient, Ann Mednick, had been taking opioid pills to cope with extreme pain caused by osteoarthritis. While rheumatoid arthritis is on the list of 40 qualifying conditions for medical marijuana under the Illinois Compassionate Use of Medical Cannabis Pilot Program Act, osteoarthritis was not. She petitioned the state public health department under the act to add her condition and the Illinois Medical Cannabis Advisory Board voted 10-0 to recommend adding her condition.

However, Illinois Department of Public Health Director Nirav D. Shah, allegedly coerced by Gov. Bruce Rauner himself, denied the recommendation in January 2016, for a “lack of scientific data” supporting the use. The department denied Mednick’s petition again in March 2017 upon reconsideration. Luckily for patients in Illinois, Mednick appealed the state’s decision and Mitchell ruled that the director’s decision was “clearly erroneous,” citing several studies, including two papers from medical journals reviewing about 45 studies of marijuana to treat chronic pain.

If you think this was shocking for a director to overturn a unanimous advisory board recommendation, think again. That no-longer-in-existence advisory board had recommended to public health department’s director at least a dozen new qualifying conditions to be added to the medical marijuana program.

Each and every advisory board recommendation made to the director was summarily rejected by the department. Several recommendations were rejected by the department multiple times. Eventually, as part of a deal brokered by Rauner himself, the advisory board was disbanded last summer in favor of extending the medical marijuana program in Illinois.

But why would the public health department deny petitions from patients who could benefit from medical marijuana? Indeed, Mitchell seemed to chastise the department for its denial and its failure to advocate for the betterment of Illinois patients.

“Notably, the Pilot Program Act does not charge the [d]epartment with a drug regulatory role akin to the Food and Drug Administration’s. The purpose of the [a]ct ‘is to protect patients with debilitating medical conditions…’” Mednick, page 3.

The public health department is not the FDA. The department is charged with protecting and helping patients. Indeed, the standard for medical marijuana use now in Illinois was made even more clear in Mednick:

“A condition should be added as a qualifying condition [for medical marijuana] if individuals with that condition “would benefit from the medical use of cannabis.” Mednick, page 3.

This standard of utilizing medical cannabis only if it would benefit the patient is at the heart of medical cannabis state laws nationwide. In Mednick, the court took direct issue with Shah’s FDA-like failure to recognize the benefits garnered from studies and human trials. The court even criticized the department for citing one scientific article, but then somehow omitting it from its analysis.

Certainly, the fact that the patient in this case was taking opioid pills to cope with her pain was not lost upon the court. In fact, many on the Illinois Medical Cannabis Advisory Board and other professionals have agreed that medical marijuana is a convenient substitute for highly addictive opioid painkillers which act as a deathly scourge on the current drug abuse problem across the country.

In fact, a new bill is up for consideration in Illinois that would allow those who qualify to use medical cannabis if they qualify for the use of opioids. Sen. Don Harmon, Democrat from Oak Park, is a sponsor of the bill and has been on record stating that he believes medical cannabis would help people who are addicted to opioids, citing research which shows that marijuana can be a safer alternative to opioid use. See Robert McCoppin, “Illinois doctors campaign for medical marijuana as alternative to opioids,” Chicago Tribune, Nov. 17, 2017).

You might say that such a law is really trading one bad drug for another. And you may be right. But Harmon may be on to something: In Illinois the opioid-related death rate increased 120 percent from 2014 to 2015. In states where medical marijuana was legalized, opioid overdose deaths decreased by one-third according to a 2014 study.

Ultimately, we are seeing our society and politicians balancing the health of our citizens with the dangers of drug abuse. If you truly meet a real medical marijuana patient, not someone who just likes to smoke the drug for recreational purposes, but someone who actually needs it for a medical condition — try looking them in the eye and telling them that they shouldn’t take that drug.

The act is about compassion, and Mednick shows that it is very difficult for politicians to deny a beneficial drug for a patient who needs its relief to avoid suffering.