Medical Marijuana Costs and Your Personal Injury Claim
Past and future medical expenses in personal injury awards must be deemed ‘reasonably necessary’ to treat the injury. This means proving that there is a reasonable probability that the treatment will be necessary in the future to treat the injury. This also means establishing that past medical expenses were necessary to treat the injury. A plaintiff seeking to have the costs of their marijuana included in a settlement or award is required to demonstrate that it is a medically justified treatment. This means putting forward sufficient evidence to demonstrate that marijuana is required to treat accident-related injuries.
Marijuana is being prescribed more and more as a medication to treat chronic pain. Marijuana is also gaining recognition as a legitimate alternative for pain relief. However, plaintiffs face a unique difficulty in seeking costs to cover marijuana versus other drug treatments. This is due to the specific regulatory framework concerning marijuana. At the time of posting, the drug is still criminalized under the Controlled Drugs and Substances Act. Medical marijuana is given a legal exemption under the Access to Cannabis for Medical Purposes Regulations. Attempting to carve out a legal medical exemption for marijuana while keeping the drug illegal has complicated access to marijuana for patients who need it.
Medical marijuana is currently regulated by Health Canada under the Access to Cannabis for Medical Purposes Regulations. Prescriptions for marijuana must comply with the requirements set out under these regulations. Patients will need to follow Health Canada’s application process which can be found here.
One obstacle for plaintiffs who use marijuana is that a court is incredibly unlikely to award costs for marijuana that has been purchased, grown, or consumed illegally. For example, dispensaries, storefronts, and compassion clubs not licensed through Health Canada are currently illegal. One major obstacle for patients is finding a licensed marijuana producer that is affordable and carries the appropriate strain. Plaintiffs who are looking to recover the costs of their marijuana treatment should also ensure that they have a valid prescription from a physician and the required Health Canada medical document.
Another obstacle facing plaintiffs is that insurance companies may be reluctant to cover the costs of marijuana. Marijuana does not currently have a drug identification number (DIN) under the Federal Food and Drugs Act, so it may not be covered by some insurance policies. Some insurers might simply exclude marijuana-related costs from their policy coverage. There also may be mixed medical consensus about the use of marijuana to treat certain conditions. The insurer might also argue that marijuana is not an approved or recognized treatment for the plaintiff’s condition.
Recent case law from Nova Scotia recognizes marijuana as necessary medication. In Skinner v Board of Trustees for the Canadian Elevator Industry Trust Fund the Nova Scotia Human Rights Commission found that the exclusion of marijuana from an employee insurance scheme, which covered medically necessary medication to be discriminatory. This is because the interpretation of the insurance plan discriminated against employees who required marijuana to manage a disability.
In that case, the complainant suffered from long-term chronic pain because of a motor vehicle accident. Other pain treatments had been less successful in managing the complaint’s pain. However, he experienced significant improvement when treated with marijuana. The complaint’s request for marijuana coverage from an employee insurance plan managed by the Board of Trustees for the Canadian Welfare Industry (The Board) was denied. He filed a complaint with the Nova Scotia Human Rights Commission claiming the refusal of coverage discriminated against him.
The Board unsuccessfully argued that marijuana was not a drug under the plan because it lacked a Health Canada approved DIN and was not included in the provincial formulary (Skinner at para 23). The Human Rights Commission ultimately found that the wording and scope of the plan did not limit coverage to drugs possessing a DIN, or included in the provincial formulary. That the plan covered but was not limited to ‘medically necessary drugs’, and that the evidence demonstrated that marijuana was medically necessary to the complainant (Skinner at paras 27-35).
The Human Rights Commission found that the denial of marijuana coverage was discriminatory. This was because the plan covered medically necessary drugs for other beneficiaries, but the Board’s chosen interpretation of the plan denied this benefit to members who required marijuana to manage a disability (Skinner at para 184 and 203). The Human Rights Commission ordered that Skinner’s marijuana costs be covered. However, limited the coverage to marijuana from a Health Canada approved licensed producer, or another party legally authorized to produce under the Access to Cannabis for Medical Purposes Regulations (Skinner at para 214).
Skinner was appealed to the Nova Scotia Court of Appeal and heard October 2nd 2017. A decision has not yet been released. However, if the decision of the Nova Scotia Human Rights Commission is upheld it could be precedent setting for the inclusion of marijuana in insurance schemes. Namely those with provisions that do not explicitly exclude marijuana from coverage.
–A guest post by Sara Gillett, Schulich School of Law