With our federal government paving the way for the legalization of marijuana later this year, those injured in motor vehicle accidents may benefit. This is in keeping with more doctors prescribing medical marijuana for injuries from car accidents. The result is that marijuana use for accident related injuries has become more prevalent in recent years. Although Canada has had a regulation on access to medicinal marijuana since approximately July 2001, many people who legitimately use it for pain and suffering arising from a car accident have not been able to qualify for a medical marijuana license and thus have not had access to medical marijuana. The result is that they have had to rely on recreational marijuana purchases.
Our Courts also seem to be coming on board. For example, the Supreme Court of British Columbia has found that medical marijuana can be a justifiable expense and they have awarded damages for medical marijuana on a number of occasions in the past. One of the more recent cases is Westergaard v. MacLean, 2017 BCSC 772 where the injured plaintiff was awarded $25,000 for the costs of Advil and medical marijuana.
A well-known insurer, Sun Life has also recently announced that they will be adding medical marijuana coverage as an option in their plans beginning March 1, 2018. Currently it covers “specific conditions and symptoms associated with cancer, rheumatoid arthritis, multiple sclerosis, HIV-AIDS, and palliative care.” with coverage ranging between $1,500 to $6,000 a year. With growing research, it appears that many more people are accepting that marijuana has true medicinal value.
Moving forward, the next challenge will be determining whether costs can be recoverable for marijuana that does not fall under a license issued by Health Canada for medical marijuana. In a medical malpractice court case in 2011 (Joinson v. Heran, 2011 BCSC 727), Mr. Justice Brown had the following to say about the use of medical marijuana that goes above and beyond what is recommended by Health Canada:
[419] I am particularly concerned about the amount of marijuana for which Mr. Joinson received an exemption from Health Canada, 20 grams, the equivalent of about 27 joints a day, an amount well in excess of the one to three grams a day recommended by Health Canada. I somewhat understand the justification offered for consumption of 20 grams a day, Mr. Joinson’s high tolerance level because of his prior history of marihuana use – but Dr. Bright acknowledged this level of used raised significant physical and mental health concerns. In addition, Health Canada cautions, “it is reported that an elevated daily dosage of more than 5 grams increases risks with respect to the effect on cardiovascular, pulmonary and immune systems and psychomotor performance, as well as potential drug dependency.” Heatlh Canada officials raised these concerns with Dr. Bright, who was required by them to sign off on the requested 20 grams.
[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary: Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.
[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.
[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.
We at Pacific Law Group are monitoring this issue closely and will provide an update once legalization has passed and the issue of recreational or unsanctioned medical marijuana has come before the courts in a personal injury action.
If you were injured in an accident and have been using marijuana medicinally for treatment for your pain and suffering, or are interested in knowing whether coverage for the cost of marijuana may be available in your personal injury case, contact Pacific Law Group, for a free initial consultation.
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