Can a B.C. Accident Victim Claim the Cost of Medical Cannabis as Damages?

It is a basic principle of B.C. law that an accident victim is entitled to recover the costs of past and future medical care related to his or her injuries. To give a simple example, if you are hit by a car and your doctor prescribes painkillers to help you manage the pain, the negligent driver is liable for the costs of those drugs.

What if your doctor prescribes medical cannabis (i.e., marijuana)? We all know the federal government legalized marijuana for recreational purposes in October 2018, but medical cannabis has actually been legal in B.C. and throughout Canada since 2000. According to a 2016 decision by a Federal Court judge, B.C. residents have a Charter-protected right to grow their own medical cannabis at home–that is to say, the government cannot force them to buy it from a third-party supplier.

Carrillo vs. Deschutter: Defence Tries to Use Plaintiff’s Past Drug Problem Against Him

All that said, a car accident victim who chooses to self-medicate using medical cannabis–i.e., without a doctor’s authorization or prescription–may face some additional legal hurdles when seeking damages in court.

Here is a recent case on point. In Carrillo vs. Deschutter, the plaintiff was rear-ended in a car accident caused by the defendant. Prior to the accident, the plaintiff already experienced a difficult life. He fled Colombia after being targeted by paramilitary organizations in that country, according to records. Eventually, the plaintiff and his family settled in Canada, first in Quebec and then later in the B.C. Lower Mainland.

Due to his experiences in Colombia, the plaintiff developed post-traumatic stress disorder (PTSD). After the car accident, which took place in 2011, the plaintiff began self-medicating using cocaine. He was later arrested for illegal drug trafficking and given a suspended sentence with probation.

The plaintiff’s substance abuse problems later came up in his personal injury claim against the negligent driver who caused the rear-end accident. At trial, a psychiatrist retained as an expert testified that the plaintiff needed to be “put on a medical cannabis program” to help him manage the chronic pain arising from his accident-related injuries. To be clear, the doctor did not say the plaintiff should simply be allowed to grow and smoke marijuana plants. Rather, the doctor prescribed a course of “supervised” treatment involving three forms of non-psychoactive cannabinoids, including a topical cream, oil drops, and oral capsules. The doctor said medical cannabis would allow the plaintiff to “gradually” wean off his current pain medications.

To put this in dollar terms, the plaintiff requested approximately $91,000 in damages to cover his future costs of purchasing the three recommended medical cannabis products.

The defence objected to this on several grounds:

• First, the plaintiff suffers from a pre-existing psychological illness–i.e., his PTSD–which “specifically preclude(s) his consideration for medical cannabis, in accordance with the Standards of the B.C. College of Physicians and Surgeons.”
• Second, the plaintiff’s prior criminal arrest for drug trafficking is a “red flag” suggesting he is vulnerable “to illegal drugs and criminal elements.”
• Third, the defence noted the plaintiff’s other treating physicians had not “recommended medical cannabis for him.”
• Fourth, there was insufficient evidence presented to the Court that medical cannabis was an effective treatment for the plaintiff’s pain.
• Fifth, there was no evidence the plaintiff’s current prescription drugs were ineffective at managing his pain.
• Finally, the plaintiff allegedly failed to follow his doctor’s guidelines in that he was not purchasing medical cannabis “from licensed producers or in a program supervised by a physician.”

Judge Rules Medical Cannabis Claim Justified, but Not at Prices Cited by Plaintiff

The parties tried their case before Justice D. Jane Dardi of B.C. Supreme Court in Vancouver. In her judgment, issued on Dec. 3, 2018 she largely rejected the defence’s various objections. She started off by noting that the plaintiff acknowledged he had previously “purchased medical cannabis products at various dispensaries without an authorization,” but this was an honest mistake. The plaintiff relied on the psychiatrist’s report to justify obtaining medical cannabis from dispensaries without first obtaining a prescription from his treating physician. While “misguided,” Justice Dardi said there was “no deliberate intention to breach Health Canada rules and regulations.”

The judge also noted that, contrary to the defence’s arguments, the plaintiff is already using the recommended medical cannabis and experiencing significant pain relief without “any negative side effects.” As for the plaintiff’s history of illegal drug use, Justice Dardi noted the plaintiff’s cocaine abuse lasted for six months “some six years ago” and there is no evidence of any relapse. Overall, the judge said she was satisfied that “the medical cannabis program recommended by (the plaintiff’s psychiatrist) is medically justified” and subject to an award of damages against the defendant.

However, the judge did not award the plaintiff the full $91,000 that he requested. Justice Dardi noted the plaintiff did not present any evidence regarding the actual costs of obtaining the recommended medical cannabis products through a qualified Health Canada supplier. Nor did the plaintiff’s psychiatrist state exactly how long the plaintiff should continue to use medical cannabis. Ultimately, the Court decided an award of $12,000 for medical cannabis was appropriate under the circumstances.

It should be noted that medical cannabis was not the only category of damages claimed. Altogether, the judge awarded the plaintiff approximately $154,000 in damages. The majority of this award addressed the plaintiff’s non-pecuniary damages, i.e. pain and suffering. (Please note that past results are not a guarantee of future success. Each case is decided on its own merits.)

Get Advice from the Preszler Injury Lawyers Following a B.C. Lower Mainland Car Accident

The lesson of this case is fairly straightforward: Yes, an accident victim may seek damages related to the costs of medical cannabis. But in order to maximize an award under this category, a plaintiff should always act under the strict supervision of a licensed medical professional and obtain any cannabis-based products from an authorized Health Canada dispensary.

If you need legal advice on any issue related to a car accident, especially those related to injuries, contact the experienced Vancouver personal injury lawyers at Preszler Injury Lawyers right away to schedule a free, no-obligation consultation.

Source:

CanLII