May 20, 2008 -- 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.
Vivian Tellis, the director of the transplant program at Albert Einstein College of Medicine in New York, says that he would never turn somebody down because of a history of marijuana use or abuse. Because medical marijuana is not allowed in New York, most of those cases involve recreational use.
"There is no known contraindication between marijuana and the drugs you have to take after transplant," Tellis said.
Tellis explains that an addictive personality is of concern "because if you're high, you don't take your [post-transplant regimen of] pills."
Transplant centers tend to be very careful because they survive financially based on the number of successful transplants they do, explains Maxwell J. Mehlman, director of the Law-Medicine Center at Case Western Reserve University.
"They use a screening process to avoid people who might be failures and they look at several factors from drug use to having a support system," he said.
"It has actually been a source of bioethical controversy because it allows them to reject homeless people and people who live alone. In some cases, it's a backdoor way of rationing based on social worth and lifestyles."
Transplant centers insist that their utmost goal is to get organs to people who need them the most and ensuring patient safety.
The United Network of Organ Sharing, which includes 254 U.S. transplant centers, has no policy on the use of drugs or marijuana and leaves it up to their individual members to set reasonable guidelines.
Simchen, who is studying history and anthropology at a community college, is getting help from friends and strangers who are trying to get him into a transplant program.
"I've got hope that we can find a center that will put me on the list. I just wish it would happen in Washington, where I live."