The Fifth Loophole:

Amendment 2 Grants Sweeping Immunity

Amendment 2 includes four separate provisions that give immunity to
virtually everyone involved in the process of providing pot to qualifying patients:
(1) The medical use of marijuana by a qualifying patient or personal
caregiver is not subject to criminal or civil liability or sanctions
under Florida law except as provided in this section.

(2) A physician licensed in Florida shall not be subject to criminal
or civil liability or sanctions under Florida law for issuing a
physician certification to a person diagnosed with a debilitating
medical condition in a manner consistent with this section.

(3) Actions and conduct by a medical marijuana treatment center
registered with the Department, or its employees, as permitted by this
section and in compliance with Department regulations, shall not be
subject to criminal or civil liability or sanctions under Florida law
except as provided in this section.

Under (b)(7), the definition of personal caregiver, granted immunity
under subsection (a)(1), is itself defined to extend to employees of a
hospice provider, nursing, or medical facility, so all such employees
are likewise not subject to criminal or civil liability or sanctions
under Florida law.

Physician Immunity. The only kind of immunity that the Florida Supreme
Court addressed in its opinion allowing Amendment 2 to go on the ballot was
physician immunity, and that was addressed only in the context of whether the
immunity violated the single-subject rule by limiting another constitutional
provision guaranteeing Florida citizens access to courts. [Opinion at 36.]
Amendment 2 says in section (a)(2) that physicians who issue certifications
allowing patients to buy pot shall not be subject to criminal or civil liability or
sanctions under Florida law. The only qualifying language connected with this
immunity is that pot docs must act in a manner consistent with this section.
[(a)(2)] The plain meaning of this language is that as long as pot docs comply with
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what is required by Amendment 2 itself, they cannot be convicted of any crime for
these pot certifications, cannot have their medical licenses revoked under state law,
and importantly cannot be found liable for medical negligence for these
certifications. And that means if pot docs certify pot for minors, which is not
prohibited by Amendment 2, no one can take any action against the pot docs for
doing it not parents, not state regulators, not law enforcement no one. And this
immunity under Amendment 2 means that patients who are injured by using pot, or
patients families, or survivors, cannot obtain any legal relief against the pot docs
who made it happen. And it means that if patients using pot injure or kill someone
else, or cause property damages, then the people who are injured, killed, or suffer
other damages, or their families or survivors, also cant get any legal relief against
the pot docs.
John Morgan has bragged that this language in his marijuana amendment
shall not be subject to criminal or civil liability or sanctions under Florida
law -- gives doctors immunity from civil tort liability even if they commit
medical malpractice. Interviewed on the courthouse steps after the supreme court
argument in December, he said:
John Morgan wants to give immunity to doctors for medical
malpractice? My answer is: Hell yes I do. Because this is bigger than
all that.
Floridas medical marijuana push rolls into states high court,
FloridaWatchdog.org, Dec. 6, 2013 (http://watchdog.org/119142/florida-medical-
marijuana/) (emphasis added).
John Morgan said the same thing again after the release of the supreme
courts opinion allowing the amendment to go to the ballot. Addressing the Tampa
Bay Young Republicans on March 25, he again said his amendment gives
immunity to doctors. Morgan pushes medical marijuana on Young Republican
turf, Tampa Bay Business Journal, Mar. 26, 2014
(http://www.bizjournals.com/tampabay/blog/2014/03/morgan-pushes-medical-
marijuana-on-young.html?page=all).
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Under Amendment 2 as written, the only thing pot docs have to do, to get
this immunity, is to certify pot consistent with this section meaning consistent
with what Amendment 2 requires. And, all that Amendment 2 requires is that pot
docs conduct a physical examination and a full assessment of medical history, then
sign a document saying they think the patient has what the pot doc subjectively
believes is a debilitating condition and that the benefits of using pot would likely
outweigh the risks. [(b)(9)] This immunity under Amendment 2 is not conditioned
on complying with anything other than Amendment 2 itself. This means that even
if the Florida Legislature imposes additional restrictions or requirements on pot
docs, those docs are immune as long as they comply with what Amendment 2
actually says.
Four Justices of the Florida Supreme Court in the opinion allowing
Amendment 2 to go on the ballot reasoned that pot docs will still be required to
comply with statutory law and government regulations and are not immune if they
fail to do so. [Opinion at 39] But that is not what John Morgan said; he clearly
said, repeatedly, that the intent is to give physicians immunity from medical
malpractice.
Further, three Justices disagreed with the others, noting that they failed to
take into account the clear language of Amendment 2 stating that physicians are
immune so long as they comply with the requirements of Amendment 2 itself,
which are very limited. As written, Amendment 2 creates this immunity without
requiring compliance with anything else not even pre-existing laws and
regulations, just Amendment 2. This immunity is still there in the plain language
of the amendment, and all prior laws must give way if they are inconsistent with a
constitutional amendment. This doubtless will be the subject of multiple lawsuits
if Amendment 2 passes. The courts jurisdiction in the advisory opinion
proceeding was limited to determining whether the amendment satisfied the single
subject and ballot requirements, and this issue was resolved only in the context of a
single-subject challenge to the amendments restriction of access to courts. If
Amendment 2 passes, and a criminal charge or lawsuit is filed against a pot doc
after a patient or someone else suffers death, injury, or other damages, the pot doc
will assert as a defense the immunity that Amendment 2 promises to physicians.
The interpretation of the amendment on its merits will be made by another court in
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a specific factual context and in an adversarial proceeding, which ultimately may
reach the Florida Supreme Court for review on the merits (not in a limited-purpose
advisory opinion proceeding). By the time such cases get back to the supreme
court for a merits review, it is likely that at least three of the four Justices who
voted to approve the amendment will no longer be on the court. The bottom line:
the sponsor of Amendment 2 wrote yet another loophole into it, a broadly
sweeping immunity provision that will generate lawsuits and may end up hurting
injured patients and families, and those injured by pot users.
Patient, Caregiver, and Employee Immunity. Its bad enough that
Amendment 2 as written gives pot docs total immunity for certifying that patients
should use pot an immunity that is unprecedented. Even worse, however, is that
Amendment 2 extends the same immunity to patients themselves, to caregivers, to
pot treatment centers and employees, and to employees of a hospice provider,
nursing, or medical facility under sections (a)(1), (a)(3), and (b)(7). In each
provision granting immunity, the amendment uses exactly the same phrase that
John Morgan says means immunity from malpractice liability: not subject to
criminal or civil liability or sanctions under Florida law.
Now the sponsor of Amendment 2 is trying to backpedal, but it is too late to
change the language of Amendment 2. Proponents argue that the immunity in
(a)(1) only means a patient or caregiver cannot be convicted of any crime, found
liable of any civil claim, or sanctioned, for the mere act of using pot. They also
argue that the limitation in (c)(3) means patients are prohibited from operating
cars, boats, and planes while under the influence of pot, and that this prohibition
means users cant be immune from liability if they do those things. But this attempt
to backpedal falls short. Section (a)(1) of the amendment promises sweeping
immunity from criminal and civil liability and sanctions. The use of pot and the
consequences of that use are inseparable. Anyone charged with a crime or sued as
a result of using pot will claim a right to immunity, because it is written in plain
language in the amendment itself. Once again, Amendment 2 was written with a
loophole that will generate lawsuits and cause uncertainty about what it means and
does.
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Section (a)(1) cannot apply only to the limited act of patients using pot as
medicine, as the proponents claim, because it covers caregivers as well, and
caregivers are not allowed to use the pot they acquire to deal out to patients.
[(a)(7)] So, the section must mean exactly what it says: total immunity. Even if
there is an exception to immunity for DUI-type liability under (c)(3) which is
debatable at best and will have to be resolved in a lawsuit - then that leaves open
the entire universe of other acts by patients, caregivers, and employees that could
cause injuries, deaths, and other damages, that would be subject to immunity.
Although opponents of the amendment in the supreme court advisory
opinion proceedings raised their grave concerns about the ramifications of this
sweeping grant of immunity, the four Justices in the majority in the Florida
Supreme Court opinion did not resolve this issue. The three dissenting Justices of
the supreme court noted that the majority failed to address this problem with the
amendment. [Dissenting opinions at 61, 74] As the dissent phrased it, voters
would be unaware that their valuable right to pursue medical malpractice claims
(as well as other tort claims) associated with medical marijuana will be lost if this
amendment passes. [Dissenting opinion at 64] Another Justice said: The
unmistakable import of the immunity provision is that such a physician cannot be
held liable for negligence in connection with the issuance of the physician
certification. [Dissenting opinion at 75]
These serious flaws in how Amendment 2 was written will generate lawsuits
involving injured patients, their families and legal representatives; as well as third
parties injured by someone using pot. Under the amendment as written, none of
these people would have legal recourse against caregivers, physicians, Treatment
Centers, or the employers of any individuals involved in this process, even if such
individuals acted with negligence or committed intentional wrongful acts that
harmed the patients. If patients suffer aggravation or worsening of pre-existing
conditions, increased risk of future harm, lung and heart damage from smoking
marijuana, adverse reactions from interactions with other medications, reduced or
impaired immune function, addiction, progression to even more damaging drugs
through the marijuana gateway, accidents or other adverse incidents due to
impaired judgment and reduced coordination all of which are known effects of
marijuana use regardless of the purported intent to use it for medical purposes --
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they nevertheless have no civil legal recourse against anyone involved in the
process, and neither do their families, survivors, or other legal representatives. If
innocent third parties are injured or killed by patients using pot or by anyone else
granted sweeping immunity under Amendment 2, they would likewise have no
recourse. The lawsuits that will result from Amendment 2 will take years to
resolve, and the outcome of these lawsuits is uncertain. The courts presiding over
these lawsuits will be required to apply Amendment 2 as written, according to its
plain meaning, in the specific factual context presented in each case. As written,
Amendment 2 creates an enormous immunity loophole.