A recent trial in Arapahoe County shows how difficult it is to screen out determined frauds from obtaining medical marijuana.
Dr. Toribio Robert Mestas faced charges of forgery, attempting to influence a public servant, marijuana distribution and conspiracy to distribute marijuana for providing a Physician’s Certification last year to an undercover police officer. Arapahoe County District Judge Kurt Horton dismissed the charges last week.
“The court recognizes that Dr. Mestas could have done more to support his Physician’s Certification,” Horton concluded. “However, the court cannot find that Amendment 20 expressly required more.”
Amendment 20 is the poorly written measure voters approved in 2000 that in the past two years has been exploited by marijuana enthusiasts to open hundreds of commercial pot dispensaries. And Horton is quite right: The amendment does not require that a doctor spend any more time evaluating a patient than Mestas spent with the fictitious Joseph Butkus, the undercover cop.
Since this police sting occurred, the Colorado legislature passed a law, Senate Bill 109, imposing stricter standards on how doctors interact with patients seeking to use the drug. But it’s not clear that even that law would have torpedoed the physician’s recommendation in this case. After all, the amendment’s big loophole is that it allows medical marijuana for conditions involving chronic pain that are often difficult if not impossible to verify, leaving great leeway for doctor and patient alike.
“Butkus” simply invented a lower-back ailment that he said was painful and persistent, while insisting he had not seen a physician in 20 years (hence, conveniently, no medical history). He also claimed that the illegal use of pot had alleviated past pain.
Mestas’ examination may have been less than exhaustive, but he did not cavalierly wave Butkus through his office, either. As the judge recounted, “Dr. Mestas requested and obtained information on Butkus’ medical history and current medical condition despite the difficulty created by Butkus’ representation that he had not been to a doctor in 20 years and had no medical records.”
The assessment included questions about Butkus’ family and their medical history. He also made personal observations of Butkus, including taking his blood pressure.
SB 109 defines in greater detail than Amendment 20 the specifics of a bona fide physician-patient relationship while creating a process to refer physicians to the Colorado Board of Medical Examiners for suspected violations of the amendment or the law.
However, unless a doctor is running a medical-marijuana mill, recommending patients by the truckload, even the added layers of protection may well fail to screen out a phony as determined as Joseph Butkus if a physician is predisposed to favor the use of the drug as a painkiller.
We supported SB 109, and continue to hope that Colorado’s regulators and medical board will be successful in clamping down on bad actors in the medical community. But it would be naïve to expect that the law is a cure-all — at least so long as patients are willing to stretch the truth and doctors are willing to believe them.
