As many of you have heard, Dr. Harwell of Triple M Clinics was arrested in Cadillac last week. This is going to be an important case for medical marijuana in Michigan. Dr. Harwell is a competitor of mine, the only significant clinic other than mine in N. Michigan. The issue is not so much how he did certifications, which is different than my approach, but the nature of the charges.
The doc is accused of taking a patient complaint of headache and transforming that into ‘severe and chronic pain’. He is accused of conspiring with the patient by asking something along the line of ‘these headaches, are they chronic?’.
Whether he is a good doctor, or has good interview skills, or asks leading questions to a false diagnosis is a matter for the medical board, not a criminal court. Pre-signed certifications, certifications issued with no medical records and no doctor/patient contact, and the like are fraud. That is a criminal act. That is ‘selling signatures’ for a schedule 1 controlled substance. That is not what happened.
For a doctor to be charged criminally I would think that there would need to be a misdiagnosis of a potentially correctable condition that caused the patient to get sick or die. Or the wrong leg being amputated, or the wrong dosage of the wrong drug administered which caused the patient harm. In each of these situations, incompetence on the part of the doctor result in death or injury to the patient. Assault, manslaughter, etc would be the charge. Billing for procedures never performed or presigning prescription pads or certs, these are criminal acts of fraud.
What we have here appears to me to be a situation where a physician with 50 years experience made some questionable calls to recommend what is in reality a completely harmless substance with no adverse effect on the patient. After 50 years of medical service, I believe Dr. Harwell has EARNED the right to make a call on a patient’s diagnosis and the chronicity of their condition based on the complaint. Headaches rarely occur ONCE, people that get them, get them chronically.
The problem here, at worse, is a doc a little loose with his pad, a little too concerned about ‘making a sale’, a little too empathetic with the patient maybe. These aren’t criminal acts, they don’t harm the patient beyond making them vulnerable to the attack of a prosecutor by gutting their section 8 defense. That is a matter for the medical board to deal with on an ethical and professional basis.
If this charge is allowed to stand unanswered, every cerfication done by a certification center in Michigan will open the physician to felony level criminal charges. To characterize pain as ‘chronic’ or ‘severe’ as required by the Act will be opened second guessing by prosecutors and juries across the state, and certifications will grind to a halt by all but a few primary care doctors signing for their golf buddies. Without doctors willing to certifify qualified and documented patients, because they have a real fear of being arrested and paraded on SKYPE from the county lockup (and on the TV News), the entire program will cease to exist.
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