Medical Marijuana in Personal Injury Actions

2018.07.05 //

Tiffany P.K. Tsang and Callan W. MacKinlay

Originally presented at CLEBC’s Personal Injury Conference, 2018, held at Vancouver, BC on June 15, 2018.

  1. Introduction

The purpose of this paper is to provide an overview of the current state of the law and jurisprudence on the current and potential future guidelines for authorization of medical marijuana by medical practitioners; judicial considerations for awarding versus denying medical marijuana claims; and the factual considerations that counsel should pay attention to when seeking or defending an award for medical marijuana.

  • Medical Marijuana Authorization Guidelines

 

Current Medical Marijuana Guidelines for Medical Practitioners

In a paper titled “Authorizing Dried Cannabis for Chronic Pain or Anxiety: Preliminary Guidance”, printed in September, 2014, the College of Family Physicians of Canada (“CFPC”) outlined several recommendations for the utilization of Cannabis for medical purposes.[1] Those recommendations outlined that dried cannabis should:

  1. only be considered for patients suffering from neuropathic pain (not fibromyalgia or low back pain) who have failed to respond to standard treatments;
  2. only be authorized once other pharmacological therapies have been considered and once a trial of pharmaceutical cannabis has occurred;
  3. not be considered as a treatment for anxiety or insomnia;
  4. be authorized with caution for patients suffering from mood or anxiety disorders, who smoke tobacco, have risk factors for cardiovascular disease, or are heavy users of alcohol, opioids, benzodiazepines or other sedatives;
  5. be authorized in accordance with Provincial regulations;
  6. be authorized only after conducting screening tests for the above risk factors;
  7. include regular monitoring of the response to treatment of the cannabis and be discontinued if not effective or causing harm;
  8. include recommendations not to drive after use;
  9. involve discussions about authorization, dosing, and follow-up; and
  10. involve a slow increase in dosage.

The majority of these recommendations were reiterated in the College of Physicians and Surgeons of British Columbia (the “College”) guidelines on Medical Marijuana. The College’s position, like that of CFPC, is one of healthy skepticism. The College admits that the evidence for the efficacy of Medical Marijuana for any condition is limited at this point and that, without significant evidence of such efficacy, physicians should remain cautious prior to authorizing. Additionally, as the amount of active ingredients in Medical Marijuana varies significantly based on a number of factors, the obtaining of any Medical Marijuana should occur through licensed producers only.

In that vein, the College has created guidelines outlining the appropriate precautions and measures to be taken by physicians before authorizing Medical Marijuana. The guidelines state that Medical Marijuana is not appropriate for the following patients:

  1. Patients under the age of 25;
  2. Patients with a personal history or strong family history of psychosis;
  3. Patients with a current or past cannabis use disorder;
  4. Patients with an active substance abuse disorder;
  5. Patients with cardiovascular or respiratory disease; or
  6. Patients who are pregnant or planning to become pregnant or are breastfeeding. [2]

If a patient does not fall into these categories, or the physician has found that despite a risk of the above being present the patient should still be provided with an authorization for Medical Marijuana, then the physician can provide such authorization. That authorization must include the quantity of dried cannabis that the physician authorizes for the patient and the period of use for which that authorization applies, not exceeding one year (at which time the authorization can be renewed).

However, even though an authorization can be provided, the College outlines that a physician who chooses to do so must, based on the scarcity of evidence in support of Medical Marijuana’s use, do the following:

  1. Document that conventional therapies for the condition for which the authorization of cannabis for medical purposes was provided have been attempted to assist the patient in the management of his/her medical condition and have not successfully helped the patient.
  2. Assess the patient for addiction and/or risk of addiction. For the latter, use a validated addiction risk tool and retain a copy in the patient record.
  3. Discuss with the patient the risks of using cannabis and record in the patient’s medical record that a discussion occurred.
  4. Review the patient’s PharmaNet information prior to issuing an authorization for cannabis for medical purposes and in any reassessment of patients receiving cannabis for medical purposes.
  5. Retain a copy of the document provided for the authorization of cannabis for medical purposes in the patient’s medical record.
  6. Include processes to identify any misuse/abuse/diversion by the patient in any reassessment of patients receiving cannabis for medical purposes.
  7. Not sell or dispense cannabis for medical purposes to any patient.
  8. Not complete a document for the authorization of cannabis for medical purposes for a patient unless
    1. the physician has a longitudinal treating relationship with the patient, or
    2. the physician is in direct communication with another physician or nurse practitioner who has a longitudinal treating relationship with the patient and both are in well-documented agreement with the issuance of a document for the authorization of cannabis for medical purposes.
    3. The physician who is authorizing cannabis for a particular clinical indication should be primarily responsible for managing the care for that condition and following up with the patient regularly. Assessment and authorizing cannabis as a stand-alone service is considered suboptimal.[3]

Finally, while the authorization may last up to one year, the patients using Medical Marijuana should be assessed every three to six months to determine if Medical Marijuana remains an appropriate treatment regimen. Patients should be aware of the potential impairment that comes with usage of Medical Marijuana and should limit their usage in cases where such usage could increase the risk to their safety.

Future Medical Marijuana Guidelines for Medical Practitioners

It is likely that the College’s guidelines will change as better evidence on the efficacy of Medical Marijuana is discovered. One of the fundamental issues is the difference between the three active ingredients in marijuana, delta-9-tetrahydrocannabinol (THC), cannabinol (CBN), and cannabidiol (CBD).

While THC’s effects are known to cause the “high” associated with marijuana, CBN and CBD are less well studied. The primary debate currently revolves around the role of CBD in the pharmacological effects of marijuana.

In response to the College’s guidelines on the authorization of Medical Marijuana, the Practitioners for Medical Cannabis (“PMC”) wrote an editorial article in the BC Medical Journal titled “Medicinal Cannabis: Concern with College Standard”.[4] In that article, the PCM outlines the following issues with the College’s current guidelines:

  1. The guidelines fail to take into account the fact that Medical Marijuana is a broad term for a number of different physiologically active components, specifically THC and CBD, as well as the fact that Medical Marijuana need not be smoked.
  2. The College fails to take into account significant scientific literature on the benefits of Medical Marijuana or to disregard the questionable studies on Medical Marijuana’s “dangers”.
  3. The College overemphasizes the risks of professional negligence when such risks exist with the prescription of any substance or suggestion of any medical procedure.
  4. The College’s requirement that physicians try conventional therapies first restricts patients’ personal autonomy.
  5. The guidelines create a barrier to care for patients that should not exist in light of the legal landscape that has approved Medical Marijuana and protects access to it as a right.

These issues are legitimate, especially when viewed in light of the first issue: the difference between Medical Marijuana as a general term, and Medical Marijuana when looking at its active ingredients.

 

The Role of CBD

According to Health Canada, CBD has the following effects (according to pre-clinical studies): anti-inflammatory, analgesic, anti-nausea, anti-emetic (anti-vomiting), anti-psychotic, anti-ischemic (improves blood flow), anxiolytic (anti-anxiety), and anti-epileptiform (anti-seizure).[5] The most important aspect of CBD, however, is that it lacks any psychoactive component. It does not bind to any of the receptors that THC binds to and is, as a result, relatively benign.

It is likely that in the future, CBD will be less regulated than THC or CBN. That is, CBD oils, tinctures, or other delivery methods will be prescribed or authorized more readily. However, the jury is still out on the long-term effects of CBD, and thus it is likely that the respective Colleges will remain circumspect until sufficient evidence-based methods are utilized to determine CBD’s efficacy and safety. As the College and other regulatory bodies are not currently well versed on the differences between CBD and THC, we cannot expect them to change their guidelines until the evidence of CBD’s efficacy and lack of psychoactive effect is better.

  • Judicial Considerations for Medical Marijuana

 

The overwhelming majority of claims for Medical Marijuana in personal injury actions will consist of claims under the head of Cost of Future Care. As such, the primary consideration of the court will be the test for awards under Cost of Future Care, which comes from Milina v Bartsch (1985), 49 BCLR (2d) 33 (SC), namely that [at p. 78]:

The primary emphasis in assessing damages for a serious injury is provision of adequate future care. The award for future care is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff.

As such, courts are considered with determining whether or not a claim for Medical Marijuana is reasonably necessary on the medical evidence. Generally, this means that plaintiffs must establish the following:

  1. That the plaintiff will benefit from Medical Marijuana as alleviating or resolving certain symptoms arising from the accident;
  2. That such benefits are supported by the medical and expert evidence; and
  3. That the claim for Medical Marijuana is reasonable.

We have seen requests for awards for Medical Marijuana under Special Damages, which are generally considered reasonable so long as they are not excessive and represent a genuine attempt at treatment, excepting perhaps claims for vaporizers, which can cost between $200 and $600 and are not often supported by treating physicians. Counsel should be wary of any claim for vaporizer purchases, as these rely upon a similar method of burning dried cannabis and are thus not recommended by medical professionals. Nabilone and Cesamet (synthetic forms of Medical Marijuana), CBD oils and tinctures, and other more safe methods should be preferred over smoking Medical Marijuana.

  • Factual Considerations for Awards of Medical Marijuana

 

Several factual considerations arise when determining whether a request for Medical Marijuana is appropriate. Generally, these factual considerations follow the above guidelines as well as the basic principles of cost of future care awards.

Firstly, it is important to recognize that a plaintiff seeking Medical Marijuana must demonstrate that they either have purchased, or intend to purchase it through legal means. The only legal means for purchasing Medical Marijuana currently is with an authorization from a physician and purchased through an authorized producer, as listed by Health Canada.[6] Such dispensaries generally deliver via mail and do not have storefronts.

The decision of Mr. Justice N. Brown in Joinson v Heran, 2011 BCSC 727 (Joinson) was the first decision awarding fund for Medical Marijuana under the head of cost of future care in Canada. Brown J’s decision is particularly well suited to describing the host of issues present when a plaintiff is seeking an award for Medical Marijuana. We reproduce the paragraphs of that decision at length due to its relevance in this instance:

[417]     As matters stand at trial, Mr. Joinson has found smoked dry cannabis effective in reducing his pain levels, and thus, his need to use morphine and other pain medications. Dr. Surgenor, Dr. Bright and Dr. Lai commented on this beneficial aspect. But despite their endorsements, Dr. Heran points out the College of Physicians and Surgeons for British Columbia does not support the use of marijuana for medical purposes.

[418]     I accept the medical literature is controversial and this subject remains generally controversial among experts and authorities. Medical use of marijuana has many supporters, professional and lay, particularly for use in cases of intractable pain such as cancer, but also detractors who raise legitimate grounds for challenging its safety and health benefits. Given the conflicting medical opinions, scientific controversy and safety concerns, all the more reason for a judge requiring compliance with rules and regulations established for the legal purchase of medical marijuana.

[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 (sic) 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.” Health 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 CanLII 1 (SCC), [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993 (CanLII), at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915 (CanLII), 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.

[423]     Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications. [emphasis mine]

Brown J’s decision to award the plaintiff with an award outlined the following factual considerations to be taken into account in granting the award:

  1. the plaintiff found Medical Marijuana effective at alleviating his smyptoms;
  2. the efficacy of Medical Marijuana was supported by the plaintiff’s treating physicians;
  3. due to the controversy surrounding Medical Marijuana, courts should require compliance with the rules and regulations for its authorization;
  4. the plaintiff was seeking an award for amounts well in excess of the recommendations of safe amounts by Health Canada and in amounts that the plaintiff’s treating physicians did not agree with;
  5. the medical evidence must show that the Medical Marijuana is reasonably necessary;
  6. courts can limit the award to what is considered a safe amount by Health Canada and what the cost would be were the Medical Marijuana purchased from a licensed producer; and
  7. an award should not be provided that reflects a pre-existing recreational use of marijuana.

The principles outlined by Brown J in Joinson have been followed in the later cases.

Secondly, any requested amount should not be greater than that recommended by Health Canada or the treating physicians. The Medical Marijuana should also be in a form approved by Health Canada. Health Canada’s fact sheet on dosage indicates that average dosages are around 3 grams per day, regardless of the route of administration.[7] Mr. Justice Grauer in Kirby v Loubert, 2018 BCSC 498 had the following to say about the plaintiff seeking an award for an approximate daily usage of 20g per day:

[174]     On all of the medical evidence, I am prepared to accept that Mr. Kirby’s use of medical marijuana to treat chronic pain is medically justified in a general sense, given his spinal cord injuries and the resulting reduction in opioid use.  But, I find, the evidence does not support the proposition that Mr. Kirby’s use of amounts in excess of 20 g per day is either reasonable or medically justified in relation to the injuries he sustained in this accident, particularly since the resolution of his serious pressure wound sore.  The medical evidence does not go that far.  Indeed, the experts were unanimous in concluding that his present level of consumption is excessive.

The court in Mandra v Lu, 2014 BCSC 2199 dealt with an expert opinion which indicated that the plaintiff could benefit from the use of Medical Marijuana cream. Madam Justice Duncan stated (at para 98) that such treatment was “in its very early experimental stage with minimal empirical evidence to suggest it will assist the plaintiff, if it is even permissible under Health Canada’s medical marijuana exceptions”.

Thirdly, the request for Medical Marijuana should take into account the plaintiff’s history, most specifically of any prior drug usage. In Gordon v Ahn, 2016 BCSC 795, rev’d on other grounds 2017 BCCA 221, Mr. Justice Bowden stated (at para 132) “[i]n light of the plaintiff’s history of substance use and abuse, and her desire to reduce her use of drugs I do not consider the use of medical marihuana to be in her best interest”.

Fourthly, any request for Medical Marijuana should be supported by expert evidence at trial. While some cases have awarded small amounts for Medical Marijuana on the basis of a single expert,[8] generally courts require more than one expert or the agreement of an expert and a treating physician that Medical Marijuana will be of benefit to the plaintiff.[9] Similarly, the larger the award sought, the more expert evidence should be provided which supports the use of Medical Marijuana to treat the injuries of the plaintiff.

Finally, the amounts requested should be reasonable and not reflect a plaintiff seeking a “lifetime supply” of Medical Marijuana. Kirby involved a request for approximately 20-40g of Medical Marijuana for the rest of the plaintiff’s life, amounting to between $427,038 – $2,135,191. The request in Joinson was for $822,308. The request in Hollyer was for $162,489. The request in Parlby v Starr, 2017 BCSC 2353 (Parlby) was for between $154,645 and $927,910.

While plaintiffs are free to seek large amounts for Medical Marijuana, courts are reluctant to award them. Instead, most courts are willing to provide amounts for trial runs of Medical Marijuana for plaintiffs who satisfy the above conditions. The court in Joinson awarded $30,000. The court in Amini v Mondragaon, 2014 BCSC 1590 awarded $6,500. The court in Fabretti v Gill, 2014 BCSC 899 awarded $2,100 for a year of Cesamet. The court in Hollyer v Gaston, 2016 BCSC 1401 awarded $5,000 for all medication costs, including Medical Marijuana. The court in Chavez-Salinas v Tower, 2017 BCSC 2068 awarded $3,000. The largest award for Medical Marijuana was in Parlby, where the court awarded the plaintiff (who was rendered a paraplegic from the accident) $70,000 for Nabilone treatments.

What can be gleaned from these awards is that courts are reluctant to award large amounts for Medical Marijuana except in extreme situations. Any award must be based on a solid foundation of expert evidence and is unlikely to be for a lifetime supply. Courts are more willing to accept requests for synthetic forms of Medical Marijuana, such as Cesamet and Nabilone than in its dried form to be smoked or ingested as an edible. Thus, requests by plaintiffs should be small, reasonable, and based on the cost of future care of physician-authorized Medical Marijuana.

To date no Court of Appeal case has dealt with an award for Medical Marijuana under the head of cost of future care.

  1. Conclusion

It is clear that physicians and courts remain circumspect about Medical Marijuana. Plaintiffs seeking awards should take the above considerations into account when seeking awards for Medical Marijuana under the head of cost of future care. Defendants should similarly seek to ascertain whether any of the above considerations serve to limit or remove any potential award to a plaintiff. Until better evidence exists of Medical Marijuana’s efficacy and safety, or the respective colleges adjust their guidelines, awards for Medical Marijuana are likely to remain low and be the subject of additional scrutiny by the bench.

[1] “Authorizing Dried Cannabis for Chronic Pain and Anxiety: Preliminary Guidance”, The College of Family Physicians of Canada, September 2014, retrieved May 21, 2018 , <www.cfpc.ca/uploadedFiles/Resources/_PDFs/Authorizing%20Dried%20Cannabis%20for%20Chronic%20Pain%20or%20Anxiety.pdf>

[2] “Cannabis for Medical Purposes”, Professional Standards and Guidelines, College of Physicians and Surgeons of British Columbia, revised December 22, 2016, retrieved May 21, 2018 <www. www.cpsbc.ca/files/pdf/PSG-Cannabis-for-Medical-Purposes.pdf> (“CPSBC Guidelines”).

[3] Ibid.

[4] BC Medical Journal, Vol 58 No 7, September 2016 at 354-357.

[5] “Information for Health Care Professionals: Cannabis (marihuana, marijuana) and the cannabinoids”, Health Canada, February, 2013, retrieved May 21, 2018 <https://www.canada.ca/content/dam/hc-sc/migration/hc-sc/dhp-mps/alt_formats/pdf/marihuana/med/infoprof-eng.pdf> at 12.

[6] Those producers can be found here: https://www.canada.ca/en/health-canada/services/drugs-health-products/medical-use-marijuana/licensed-producers/authorized-licensed-producers-medical-purposes.html

[7] Access to Cannabis for Medical Purposes Regulations – Daily Amount Fact Sheet (Dosage), Health Canada, retrieved May 15, 2018 <https://www.canada.ca/en/health-canada/services/drugs-health-products/medical-use-marijuana/information-medical-practitioners/marihuana-medical-purposes-regulations-daily-amount-fact-sheet-dosage.html>

[8] See, for example, Amini v Mondragaon, 2014 BCSC 1590 at para 133; Chavez-Salinas v Tower, 2015 BCSC 2068 at para 539; Hollyer v Gaston, 2016 BCSC 1401 at paras 136-137.

[9] See, for examples, McCullum v White, 2016 BCSC 569 at para 123;Truong v Lu, 2016 BCSC 2043 at 50; Kirby v Loubert, 2018 BCSC 498 at para 174; and Manoharan v Kaur, 2016 BCSC 692 at para 56.

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