May 19, 2019

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Illinois Appellate Court Opens Door to Expanding List of Accepted Diseases in Medical Marijuana Program

On May 22, 2017, the Illinois First District Appellate Court upheld reversal of the Illinois Department of Public Health’s (IDPH’s) refusal to add chronic postoperative pain (CPOP) to the list of accepted diseases in the Illinois medical marijuana program in Three v. The Department of Public Health et al., 2017 IL App (1st) 162548.

John Doe Three (Doe) applied to the IDPH to add CPOP as an approved condition for the legal use of medical marijuana. In 2015, the IDPH’s director, Nirav Shah, denied the application, claiming a lack of scientific research to support the condition. However, at the time, the newly minted Illinois medical marijuana program only required a majority vote of an advisory panel that considered applications by Illinois citizens. Doe obtained that approval of the panel, which considered information about the condition and why conventional therapies were ineffective.

Doe filed a petition for administrative review, which was conducted by Judge Neil Cohen in the Circuit Court of Cook County. Judge Cohen sided with Doe, concluding that Shah failed to follow the department rules in effect at the time. The IDPH and Shah filed a motion to reconsider, which was denied, leading to the subject appeal.

The appellate court affirmed the lower court’s ruling, holding Doe’s request to add CPOP was properly granted and that the heightened standard by Shah simply was not supported. The reviewing court did remand on one point, disagreeing with Judge Cohen’s order to add CPOP to the list of approved medical marijuana conditions within 30 days, instead requiring that the decision be remanded for further proceedings.

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About this Author

Kathleen McDonough, Wilson Elser Law Firm, Commercial Litigation Attorney

Kathleen McDonough has more than 20 years of experience in state and federal courts across the country and regularly provides transactional and business consulting services to a variety of corporate entities. She also has worked extensively in the areas of mass tort, product liability and employment litigation and consulting, and she has several years' experience with financial crime cases, including the implementation of risk management, insurance carrier and public relations processes. Kathleen’s clients come from major sectors, including retail, advertising,...