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Medical Cannabis Victory for Goldberg Law Group

The Illinois Department of Public Health director’s decision not to add chronic post-operative pain to the medical cannabis treatment list was based on an incorrect standard and should be reversed, a Cook County judge ruled.

Associate Judge Neil H. Cohen found this morning that IDPH Director Nirav Shah improperly considered outside evidence when he decided whether to allow the condition be treated with medical cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act.

Such a standard is outlined in neither the act nor department rules governing petition consideration, Cohen ruled, as they state only that the director should give final decisions on petitions based on the Medical Cannabis Advisory Board’s recommendations — which are issued after considering materials submitted ahead of a public hearing before the board.

"The court finds that the [d]irector clearly violated the [d]epartment’s rules governing the consideration of petitions to add debilitating conditions to the [a]ct and, more importantly, violated [p]laintiff’s due process rights," he wrote is four-page memorandum and order.

Cohen’s ruling remands the case back to Shah so he can issue a new decision based on materials presented to the advisory board, which did not initially cast a unanimous vote to add the condition to the list of debilitating illnesses which are treatable with medical cannabis.

It’s the fourth condition — and the second from Cohen — for which a Cook County judge has issued similar opinions.

And with each ruling coming down with relatively similar findings, the message to send is that "enough is enough," said Michael K. Goldberg, a partner at Goldberg Law Group LLC who represents this case’s plaintiff — identified in court records as John Doe-Three.

"The governor has to listen to the public and protect the health, safety and welfare of the public and add these conditions to the list," he said.

Doe-Three submitted to IDPH his petition to add chronic post-operative pain to the act’s debilitating illness list in March 2015.

"Post-operative pain isn’t just the type of pain we all get after surgery. It’s pain that lasts for months and isn’t going to go away," Goldberg said. "These are people who are experiencing terrible side effects of controlled substances, and/or they don’t even work."

After a public hearing, the advisory board voted 7-3 to approve Doe-Three’s petition.

But that October, Shah denied the petition after adding articles to the record that were neither presented nor considered during the public hearing. Shah found the petition lacked "substantial evidence from adequate, well-controlled clinical trials" to support using cannabis to treat the condition.

The plaintiff then filed his lawsuit for administrative review in November, alleging Shah wrongly added material to the record and employed an improper standard when issuing his decision.

Cohen ruled Shah’s approach to the petition did not follow applicable administrative rules and deprived the plaintiff of his due-process rights.

"The [d]irector did not review the [a]dvisory board’s recommendations, but conducted his own investigation and added his own evidence to the [r]ecord," he ruled.

"… Plaintiff was not given any opportunity to challenge the additional evidence considered by the [d]irector. Plaintiff was not even aware that the [d]irector had considered this additional evidence until after the filing of this action."

Goldberg said he would have liked Cohen to order the condition be added directly to the debilitating-condition list, but the judge’s decision makes clear that "the director is really boxed into a corner" in the limited standard by which he can consider such petitions.

A spokeswoman for the Illinois Attorney General’s Office, which represented the IDPH, said the decision is under review.

A spokeswoman for the IDPH said the department is still reviewing Cohen’s decision.

The case is John Doe-Three v. Illinois Department of Public Health, 15 CH 16766.

A Cook County judge is ordering the state of Illinois to reconsider adding irritable bowel syndrome to the list of conditions that can be treated with medical marijuana.

CHICAGO (AP) — Illinois must add post-traumatic stress disorder to the list of diseases eligible for medical marijuana treatment, a Cook County judge ordered Tuesday in a sternly worded ruling that also said the state's public health director engaged in a "private investigation" that was "constitutionally inappropriate."

Chicago Tribune: Judge orders state to reconsider medical marijuana for migraines

In a ruling that could significantly expand the use of medical marijuana in Illinois, a judge has ordered state officials to reconsider adding migraine headaches to the list of conditions that qualify a patient to buy the drug.