When Jonathan Simchen was diagnosed with kidney failure last summer, he did just what the doctor ordered: He applied for a kidney transplant and took his prescribed medicine -- medical marijuana.
The marijuana was meant to control his nausea.
Simchen, a 33-year-old diabetic who lives near Seattle, soon found out there was a Catch-22 rolled up in his legalized joints. He was turned down by two organ transplant programs because he uses medical marijuana.
"About two or three months after I got on dialysis, I went to Virginia Mason Hospital and they did a rigorous set of tests of my lungs, brain, circulatory system, a psychological evaluation," Simchen told ABCNEWS.com.
"[They] took me off the list because they're afraid of me being a future drug user," said Simchen, who admits that he has used cocaine. But that was in the past and he even quit using medical marijuana at the hospital's request.
When Simchen went to the University of Washington Medical Center, he says he was also turned down.
"They made it clear that if you had medical marijuana, they wouldn't treat me. I just lost hope and got totally frustrated."
Alisha Mark, a spokeswoman for Virginia Mason, would not discuss details of Simchen's case because of medical privacy regulations, but said that "any patient who smokes any product -- tobacco, cloves, medical marijuana -- would be precluded from receiving a transplant here."
The hospital, which performs 90 to 100 transplants a year, is concerned about medical safety in the evaluation of whether a patient is a suitable candidate for organ transfer, explained Mark.
"So few people are denied access to the waiting list. We're not here to prevent them from getting on the list," she said.
A spokeswoman for the University of Washington Medical Center also declined to discuss specifics of Simchen's case, but said that medical marijuana use is only one of multiple factors, including behavioral concerns such as a history of substance abuse or dependency, examined by their transplant committee.
"We've never denied someone based solely on their use of medical marijuana," said Clare Hagerty.
Simchen, whose lawyer is planning legal action against the transplant centers, could become a test case to challenge criteria of who is eligible to receive one of the life-giving organs.
Doug Hiatt, a criminal defense lawyer, has represented several clients including Timothy Garon, a Seattle musician who died earlier this month after being turned down for a liver transplant.
"Everyone else I've repped died on me," said Hiatt. "This guy [Simchen] is in good enough shape that we can fight it out. … I realize that there is a shortage of organs and that doctors and hospitals have to do the best they can to take care of the organs they have, but it never dawned on me that they would discriminate against someone using marijuana under supervision, not as a street drug."
There has never been a successful case brought in such cases, according to Dale Geringer, the California director of the National Organization for the Reform of Marijuana Laws. He could recall similar situations going back to 1997.
"The litigation takes months and years and these people have weeks or days," he said.
Other transplant doctors and bioethicists, including some in states where medical marijuana is against the law, were surprised to hear about the refusals.