Can I tell the judge about my medical marijuana?

This article appeared first in the Georgia Straight and has been edited online.

When you really boil it down, a personal injury lawsuit is about whether a person is suffering because of another’s wrongdoing. If so, the court must decide how to put that injured person back to the “baseline.” This takes the form of damages.

An award of damages can have many parts that represent different things. One part can represent a person’s pain and suffering. One part can represent lost wages. Medical expenses can make up another part of damages. Perhaps these are expenses for physiotherapy or chiropractic treatment.

Interestingly, marijuana is becoming a more and more common way to treat pain. So how do the courts view medical marijuana in personal injury cases? Would they order damages that factor this in?

A complicated case study

Recently, the B.C. Supreme Court heard a case where the injured person had resorted to marijuana for pain relief. This court case involved a 50-year-old man who was claiming damages for injuries suffered in a 2009 car accident.

However, he had severe injuries that existed before that accident. When this 50-year-old man was in his 20s, he was in a tragic accident that caused a spinal cord injury that left him paraplegic.

In the many years that followed, he managed to live an independent life. However, he was always in pain. He used marijuana to cope with his chronic pain. Leading up to the 2009 car accident, this man was taking up to 20 grams per day.

The court had to determine what, exactly, was a result of this 2009 accident—rather than the first accident from decades beforehand.

The court concluded that the 2009 accident led to a severe wound that required surgery. The 2009 accident also aggravated the chronic pain that already existed. The 2009 accident also caused pain and limitation in both shoulders. The court heard testimony of how devastating this was for someone who had no function in his legs.

So how did medical marijuana come into play in this lawsuit? The court had to decide on damages for the cost of future care—in other words, the damages that represent the man’s medical expenses for the future.

The plaintiff had been taking marijuana for pain relief. Because his pain was considered permanent by the expert witnesses, the plaintiff claimed that he would need to take medical marijuana for the rest of his life. The size of the claim was high because of the sheer amount of medical marijuana that the plaintiff was taking.

The implications were huge. Remember, his “baseline” use of marijuana for pain relief was 20 grams per day. That’s how much he was taking before the 2009 accident even happened. However, as a result of increased pain from the 2009 accident, his marijuana use increased drastically. By trial, he was taking a staggering 40 grams per day.

The court had to decide whether medical marijuana and the plaintiff’s increase in dosage should be factored into the damages. The court heard evidence about how much this could be. This amounted to a claim in the hundreds of thousands of dollars, up to the millions.

So how did the court tackle such a decision?

As with any claim for the cost of future care, the court had to decide whether the need for medical marijuana was linked to the 2009 accident.

Also, the court had to consider if medical marijuana, and the plaintiff’s dosages, were reasonable and medically justified.

The court was assisted by multiple experts on this point. Importantly, the court accepted that the marijuana use was medically justified in the general sense. This is because of the severity of the preexisting spinal cord injury and because marijuana likely took the place of opioid medication for the plaintiff.

However, the court was swayed by experts presented on both sides who felt the plaintiff’s use was excessive.

The court did not find that the plaintiff’s increase from 20 grams to 40 grams each day was reasonable or justified from a medical standpoint. Ultimately, the court declined to award damages relating to the plaintiff’s future marijuana use.

This case illustrates how the law adapts to new scenarios. Medical marijuana may not be a common basis for damages. However, the legal principles remain the same. If the evidence shows that a particular treatment is medically justified and reasonable in the circumstances, then it may be the basis for an award of damages.