Watching Your Claims Go Up In Smoke? Five Key Medical Cannabis Cost of Care Considerations
July 10, 2017
By Melanie Comstock, Partner at McInnes Cooper,
Sheila Strong, Litigation Law Analyst at McInnes Cooper
The legal landscape of cannabis (a.k.a. marihuana, weed, pot …) is changing, both reflecting – and contributing to – more relaxed attitudes around cannabis consumption. Cannabis for medical purposes has been legal for some time. And though recreational cannabis isn’t legal yet, its pending legalization is driving the stigma associated with cannabis usage down and driving usage up. Although the legal regimes governing medical and recreational cannabis are separate, legalization of recreational cannabis will undoubtedly lead more people to view medical cannabis as an acceptable treatment. To date, insurers have, generally, been leery of coverage of medical cannabis both in benefit claims and in cost of care claims in the personal injury context. There aren’t many decisions considering medical cannabis as an element of a claim for cost of future care – yet. But the number will likely grow significantly and quickly given the current climate and a judicial trend recognizing that some patients benefit significantly from using medical cannabis. And insurers need to be prepared to respond.
Here is a look at the current legal context of medical cannabis and the themes that have emerged from the as yet limited court decisions dealing with claims for both insurance benefit coverage and cost of care.
MEDICAL CANNABIS’S LEGAL CONTEXT
Cannabis was criminalized in Canada in 1923. Yet the legal framework governing cannabis generally, and medical cannabis specifically, has evolved significantly in the last 20 years.
Legal Possession of Dried Medical Cannabis. In 1999, the federal government first permitted legal access to dried cannabis for medical purposes pursuant to exemptions under the federal Controlled Drugs and Substances Act (CDSA).
Limited Access to Dried Medical Cannabis. In 2001, in response to a legal decision that individuals with a medical need have the right to possess cannabis for medical purposes, the federal government implemented the Marihuana Medical Access Regulations (MMAR). These regulations enabled individuals to obtain authorization from their doctors to access dried cannabis by growing their own, designating someone else to grow it for them or purchasing it from a Health Canada supply. From time to time thereafter, the federal government amended the MMAR in response to further legal decisions.
Commercialization of Medical Cannabis. In 2013, the federal government implemented the Marihuana for Medical Purposes Regulations (MMPR) permitting the establishment of a commercial industry to grow and distribute dried cannabis for medical purposes, but stopped granting new authorizations for individuals to grow cannabis for their own medical purposes. In June 2015, in response to a legal decision that restricting medical access to dried cannabis only was unconstitutional, the federal Minister of Health issued new class exemptions under the CDSA to allow licensed producers to also produce and sell cannabis oil and fresh cannabis buds and leaves and authorized users to possess and alter different forms of cannabis.
Expanded Access to Medical Cannabis. In 2016, the Federal Court of Canada decided, in Allard v. Canada, the regulations then in effect requiring individuals to obtain cannabis only from licensed producers denied “reasonable access” to individuals requiring medical cannabis, and violated the Canadian Charter of Rights and Freedom’s section 7 liberty and security rights. In response, in 2016, the federal government implemented the Access to Cannabis for Medical Purposes Regulations (ACMPR): Part 1 sets out a framework for commercial production by licensed producers similar to that under the MMPR; Part 2 is similar to the former MMAR regime in that it permits individuals to produce a limited amount of cannabis for their own medical purposes or designate someone else to produce it for them. In August 2016, Health Canada started accepting applications from individuals for registration to produce cannabis for their own medical use, or to designate someone to produce it for them. The ACMPR authorizes four key activities:
- Sale & Distribution. Sale and distribution of dried and fresh cannabis and cannabis oil by licensed producers to eligible members of the public.
- Licensed Producers. Only producers licensed by Health Canada can legally sell medical cannabis, in the forms of fresh and dried cannabis, cannabis oil and cannabis seeds and plants, to the public.
- Eligible members of the public. Only persons who ordinarily reside in Canada are eligible to be clients of a licensed producer. To be eligible to possess medical cannabis, the cannabis must have been provided or produced pursuant to a prescription by a healthcare practitioner who is treating the person. However, a patient is prohibited from seeking or obtaining cannabis from more than one source at a time. To prevent attempts to fill a single prescription more than once, there are extensive regulations about the filing of Medical Documents and the registration of individuals as clients of licensed producers; for example, there are several requirements an individual must meet before they can be registered as a client with a licensed producer.
- Healthcare practitioner. A “healthcare practitioner” is a medical practitioner (a doctor registered and entitled under provincial laws to practise medicine in that province, not named in a prohibition notice issued under s. 59 of the Narcotic Control Regulations (NCR) that hasn’t been retracted under s. 60 of the NCR) or a nurse practitioner (a registered nurse with additional healthcare education and experience who can make diagnoses and prescribe drugs under provincial regulations, is permitted to prescribe dried cannabis in the province in which they practise, and isn’t named in a prohibition notice issued under s. 59 of the NCR that hasn’t been retracted under s. 60 of the NCR). Provincial Colleges of Physicians and Surgeons might impose additional criteria, such as the requirement the physician have direct in-person contact with the patient before authorizing use of cannabis and pre-conditions to prescription (e.g. assessment of addiction risk and monitoring). The federal government has provided the legislative framework within which to permit nurse practitioners to prescribe medical cannabis, but provincial and territorial governments are responsible for regulating those health professionals and must implement the necessary changes to provincial regulatory schemes to permit nurse practitioners to prescribe medical cannabis.
- Medical Document. A person eligible to obtain medical cannabis must have a healthcare practitioner’s support in the form of a mandatory Medical Document completed by a healthcare practitioner who’s treating the patient and containing:
- The healthcare practitioner’s name, profession, business address, telephone number, the province in which the practitioner is authorized to practise, and the number assigned by the province to that authorization, and fax number and e-mail address if appropriate.
- The patient’s name and date of birth.
- The address of the location at which the patient consulted with the practitioner.
- The daily quantity of cannabis the patient is to use expressed in terms of grams of dried cannabis. Health Canada advises, in its bulletin “Information for Medical Practitioners”, that various surveys published in peer-reviewed scientific and medical literature suggest the majority of people smoking or orally ingesting cannabis for therapeutic purposes reported using one to three grams of dried cannabis daily. The ACMPR doesn’t restrict the daily amount a healthcare practitioner can prescribe, but the practical effect of the regulatory cap on the amount an individual can possess limits an individual to a daily dose of prescribed medical cannabis of no more than the equivalent of 5 grams of dried cannabis daily.
- The period of use as a number of days, weeks or months that can’t exceed one year; the Medical Document is only valid for the specified period of use, so patients must obtain a new Medical Document and re-register with a licensed producer every year.
- The healthcare practitioner’s signature and a statement attesting the information in the document is correct and complete.
- Possession. Possession of various forms of fresh and dried cannabis and cannabis oil for medical purposes by eligible members of the public. The maximum amount of fresh or dried cannabis or cannabis oil a patient can legally possess at any one time is the lesser of 30 times the daily amount prescribed (expressed in grams of dried cannabis) or the equivalent of 150 grams of dried cannabis; according to Health Canada, five grams of fresh cannabis equates to one gram of dried cannabis.
- Self-Production. An eligible member of the public is permitted to produce cannabis for their own medical purposes or to designate someone else to produce it on their behalf; neither, however, is permitted to sell cannabis. There’s an exception to the prohibition of a patient obtaining medical cannabis from more than one source at a time to permit an individual to obtain an interim supply of fresh or dried cannabis or cannabis oil from a sole licensed producer and to obtain cannabis seeds or plants from one or more licensed producers. To be eligible for registration to grow their own cannabis or to be a designated grower, an individual must meet several criteria:
- The individual (i.e., the patient) must be an adult ordinarily resident in Canada who has not been convicted as an adult within the preceding 10 years of a designated cannabis offence under the Criminal Code of Canada.
- The designate must be an adult ordinarily resident in Canada who has not been convicted as an adult – or juvenile – of a designated cannabis criminal offence.
- The individual (i.e., the patient) must submit an application that includes their original Medical Document and the further information and documents required by the ACMPR (s. 177).
An eligible individual can’t have more than one designated producer at a time or more than one registration to grow their own medical cannabis at a time, and must renew their registration annually. An eligible individual (or designated producer) can only have that number of plants under production that produces the daily quantity of cannabis (expressed in grams of dried cannabis) indicated in the individual’s Medical Document, as calculated pursuant to mathematical formulae in the ACMPR (s. 190). An eligible individual is also limited to a maximum quantity of cannabis in storage, as calculated pursuant to mathematical formulae in the ACMPR (s. 191). There are also extensive regulations with regard to production and storage sites.
Pending Legalization of Recreational Cannabis. Public opinion on cannabis control has shifted considerably in the last decade: 10 years ago about 50% of Canadians believed cannabis use should be decriminalized or legalized; today, about two thirds hold this view and most no longer believe simple cannabis possession should be subject to harsh criminal sanctions and support the Government’s commitment to legalize, tax and regulate cannabis. On April 13, 2017, Canada’s federal government introduced legislation that, if passed into law, will legalize recreational cannabis in Canada. And although recreational cannabis isn’t legal yet, much of the associated stigma is already gone, usage is up, and stakeholders like health benefits providers and employers are preparing for the impact of the pending legalization of recreational cannabis now. The pending legalization of recreational cannabis impacts medical cannabis to the extent it both reflects and is driving changing attitudes about cannabis generally, but it’s important to remember the legal regimes governing recreational and medical cannabis are, at least so far, different.
INSURERS’ MEDICAL CANNABIS CONUNDRUM
Insurers (both of casualty and healthcare benefits) have, generally, resisted coverage of medical cannabis on a number of bases, some successful – and some not. Here are three of the most common reasons for denial based on policy interpretation of benefit claims.
It’s not a “drug”. Some have taken the position that, since cannabis has (at least currently) no Drug Identification Number (DIN) under the federal Food and Drugs Act, it doesn’t meet the definition of “drug” under an insurance policy. For example, in Corporation of the City Hamilton v. Hamilton Professional Fire Fighters’ Association (a 2016 Ontario labour arbitration case), the arbitrator denied a grievance arising from the insurer’s refusal of coverage for prescribed medical cannabis under the firefighters’ benefits plan. The plan explicitly limited drug coverage to drugs with a DIN; since Health Canada hadn’t approved cannabis, it didn’t have a DIN and wasn’t included in provincial formularies and thus wasn’t an eligible expense under the plan. But to exclude coverage of medical cannabis on the basis it’s not a “drug”, the policy must explicitly define a drug as having a DIN under the Act. For example, in Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, a human rights complaint against the administrators of a health benefits plan, the plan didn’t expressly limit coverage to drugs with a DIN, define a “drug” or limit coverage to Health Canada-approved drugs or any other category. It’s probably not enough to define a drug as a “prescription drug” either; those terms must likely be narrowly defined if intended to exclude an ACMPR Medical Document. If not, a court might consider a Medical Document a prescription, as does, for example, the Ontario College of Physicians and Surgeons. For example, in Skinner, the plan described the types of drugs and medications excluded from coverage, stating over-the-counter medications or drugs for which a prescription wasn’t required by law (federal or provincial) were excluded from coverage – but the Human Rights adjudicator noted medical cannabis requires a “prescription”, removing it from that exclusion; the plan also included a pricing regime for drugs not included in the provincial formulary, suggesting inclusion in that formulary was not the only basis for determining whether a drug (or a medicine) was an eligible expense under the plan. [Note: On April 12, 2018 the N.S. Court of Appeal issued its decision in Canadian Elevator Industry Welfare Trust Fund v. Skinner, concluding the benefits provider’s denial of coverage of the insured’s medical marijuana prescription wasn’t discriminatory.]
It’s not “medicine”. Medical cannabis might still, however, be an eligible expense under a policy that includes coverage for “drugs” and “medicines”. If a policy includes “medicines” as an eligible expense without a narrow definition, a court will likely interpret “medicines” more broadly than “drugs” and may include medical cannabis if it’s prescribed for a medically necessary purpose such as pain management. Such a policy could reasonably be interpreted to exclude cannabis as a drug (because it doesn’t have a DIN) – but to include medical cannabis as a “medicine” if it’s prescribed to treat medical symptoms. For example, in University of Western Ontario v. University of Western Ontario Faculty Association, 2008 CarswellOnt 7554, an Ontario labour arbitration case, the “medicine” wasn’t cannabis, but a food supplement prescribed for a child with a catastrophic brain injury and consumed through a surgically inserted G-tube. The arbitrator concluded that drugs and medicines were both eligible expenses under the policy, so the two terms couldn’t have been intended to be synonymous; if “drug” could be defined narrowly as a regulated drug under the Food and Drugs Act, the term “medicine” must have been intended to have a broader meaning. On the facts, the arbitrator decided the food supplement was a medicine because it was prescribed by a physician to relieve the physical effects of an injury. Medical cannabis may be similarly prescribed by a healthcare practitioner to relieve the physical effects of an injury: for example, in Skinner, the plan included coverage for both drugs and medicines; the adjudicator confirmed that, for the reasons outlined in University of Western Ontario v. University of Western Ontario Faculty Association, one could reasonably conclude that medical cannabis is medicine – even if it’s not a drug.
It’s not “medically necessary”. Insurers have also argued medical cannabis isn’t an eligible expense because the policy only covers “medically necessary” drugs or medicines – but to be successful, the court may require that the policy defines “medically necessary” in a manner that excludes medical cannabis. For example, in Skinner, the plan only covered “medically necessary” drugs or medicines, but didn’t explicitly define “medically necessary”; it did, however, implicitly define it in the “Prescription Drug Exclusions” section, which excluded “Drugs which are not considered medically necessary, e.g. cosmetic or weight loss/lifestyle…”. The adjucator said, “This appears to have nothing to do with medical consensus and everything to do with the purpose for which a drug or medicine is prescribed”, concluding if medical cannabis is prescribed for pain management, there’s prima facie support for its medical necessity because conventional prescription pain management drugs are normally eligible for coverage. The medical evidence showed conventional medications weren’t effective and the complainant’s physicians had ruled them out because they didn’t improve his function and caused multiple and highly undesirable side effects; a pain management specialist testified the continuing use of medical cannabis had a positive impact on the complainant’s functionality, and the complainant gave un-contradicted testimony that it positively impacted his functioning.
CANNABIS AS COST OF CARE
There are not many decisions considering medical cannabis as a cost of care in tort claims – yet. But the number of cases will likely grow significantly in the next few years: given the current climate, and a judicial trend recognizing that some patients benefit significantly from using medical cannabis. As the adjudicator in Skinner expressly acknowledged, “one trend that emerges is the repeated judicial finding, based on anecdotal and expert evidence, of a significant benefit to some patients from using medical [cannabis]” (para. 46).
Cost of Care Considerations. Here are five key considerations courts considering cannabis cost of care claims take into account that emerge from the decisions to date.
- Did the plaintiff adhere to the regulatory process and does the prescribed dosage fall within Health Canada’s recommended maximum? There’s still a great deal of controversy in the medical and legal communities about the use of cannabis for medical purposes – and courts recognize this. The plaintiffs will be more likely to succeed if they followed the regulatory processes in the MMPR or ACMPR, including obtaining a Medical Document. For example, in Datoc v. Raj, the court denied the plaintiff’s claim for medical cannabis in part because it was prescribed by his naturopath – not a “medical practitioner” as regulations (at the time) defined one. Similarly, in Poirier v. Robichaud, the court accepted that cannabis considerably relieved the plaintiff’s pain, but refused her claim for future cost of care for cannabis in part because she had no prescription or other significant medical expert evidence in support of cannabis use. Nor had she taken any formal steps to obtain permission for cannabis use under the regulatory process – despite the fact she had demonstrated intolerance or allergic reactions to some of her prescribed narcotics and had become addicted to another. Even if the court allows a claim, it might limit any award to amounts and costs within the parameters of the existing regulatory scheme and Health Canada’s maximum daily dosage recommendation (a daily amount equivalent to three to five grams, or less, of dried cannabis) – even if the Medical Document prescribes more. For example, in Joinson v. Heran the court took the position it should limit its award in that manner. However, there do seem to be exceptions. For example, in Amini v. Mondragaon the court accepted a claim for the cost of medical cannabis in which 10 grams daily was prescribed; but the medical evidence indicated the plaintiff would be using it for six months only, and it was to be consumed in ointment form which may result in lower potency.
- Did the plaintiff’s physician complete the Medical Document “passively”? Mere adherence to the regulatory process probably won’t suffice: if the plaintiff’s physician completes a Medical Document passively – by simply responding to the plaintiff’s request for cannabis and basing their decision to do so solely on the plaintiff’s self-report that cannabis relieves their symptoms – a court may very well decide there’s no (or not enough) medical evidence to prove medical cannabis is reasonably necessary to treat the patient’s symptoms. But if the plaintiff can show their physician did some research, looked at the medical literature, or otherwise educated themself about treatment with medical cannabis, and then made a considered decision whether it would be a suitable treatment for the plaintiff’s symptoms, a court may find medical cannabis is a reasonable treatment. That evidence will be more credible if the plaintiff’s treating physician provides it and if that physician sees the plaintiff regularly. For example, in Torchia v. Siegrist, the court concluded one doctor’s statement he had patients reporting using cannabis for pain could not be taken as a recommendation made on the basis of medical evidence that medical cannabis was capable of treating the plaintiff’s pain. The fact another doctor prescribed medical cannabis at the plaintiff’s request was not evidence supporting a finding it was a reasonable treatment because the doctor admitted he had no expertise in cannabis use as a chronic pain treatment and simply acceded to his patient’s request for a treatment modality without engaging in any research or review of medical literature or otherwise educating himself in order to make an informed decision about that treatment recommendation. Similarly, in McCullum v. White, at the time of trial, the plaintiff was taking medical cannabis and methadone to help relieve pain and prevent relapse into IV drug use. The court concluded there was no medical evidence recommending the plaintiff’s ongoing use of medical cannabis: none of the treating physicians advocated for use of medical cannabis to treat the plaintiff’s pain and his family physician, who testified he would not recommend treatment with medical cannabis, passively agreed to prescribe it because the plaintiff asked for it.
- Does the evidence prove it’s a “reasonable treatment”? The plaintiff’s medical evidence must show, at the very least, that medical cannabis is a reasonable treatment for the plaintiff’s specific symptoms. The plaintiff’s medical evidence will be more convincing if it shows a positive benefit, such as use of medical cannabis leading to reduced consumption of narcotics to treat chronic pain. However, if the insurer can show that medical cannabis isn’t an appropriate treatment for the plaintiff’s particular symptoms in light of unrelated health conditions that tend to contra-indicate the use of cannabis, a court will probably decide medical cannabis isn’t a reasonable treatment and decline to award for it. For example, court decisions tend to accept cannabis as a treatment for pain (particularly chronic pain), but not to accept it as a treatment In other circumstances:
- “Trial” or “Experimental” Treatment. If, as in Manoharan v. Kaur and Mandra v. Lu, the medical evidence shows that medical cannabis was prescribed as a “trial” or “experiment” without supporting empirical evidence, a court will decline to award the plaintiff the cost of medical cannabis.
- Respiratory condition. Smoking cannabis wouldn’t be a suitable treatment for a plaintiff with a long history of asthma – and who was previously advised by their respirologist not to smoke cannabis – as, for example, in Despres v. MacDonald Crane Service Ltd.
- Prior adverse effects. Similarly, a plaintiff who suffered adverse effects when taking excessive amounts of cannabis in the past wouldn’t be a suitable candidate. For example, in Poirier v. Robichaud, one factor the court considered in denying the plaintiff’s medical cannabis claim was medical evidence indicating the plaintiff’s excessive use of cannabis in the recent (pre-injury) past had caused adverse effects.
- Addiction. A plaintiff with addiction problems is likewise an unsuitable candidate. For example, in Gordon v. Ahn, the plaintiff had a significant history of drug use (including cannabis, ecstasy and alcohol) and withdrawal. She suffered chronic pain and aggravation of pre-existing psychological problems. One of her physicians recommended medical cannabis in the form of a topical cream, but advised against smoking; six years post-accident, she was smoking cannabis daily to manage her symptoms, testifying it helped “numb things” and her symptoms had recently improved, and was still using ecstasy. She had sought counselling for her drug use but could not afford to continue. The court found the physician who recommended medical cannabis had not asked the plaintiff about her history of drug abuse so gave the recommendation little weight because his history-taking was flawed, and the plaintiff had a history of substance abuse and wanted to reduce her drug intake.
- Depression. It also appears cannabis is not an appropriate treatment modality for pain if the plaintiff also suffers from depression because a common cannabis side effect is reduced motivation, which interferes with treatment progress for conditions like anxiety and depression. For example, in Moojelski v. Edwards, the plaintiff was diagnosed with depression associated with his back injury. His doctor prescribed anti-depressants and the plaintiff began taking cannabis, telling his doctor he found some relief. The doctor told the plaintiff consumption of cannabis was not recommended with anti-depressants. The plaintiff’s psychologist advised reducing cannabis intake and attributed the plaintiff’s mental health condition to cannabis abuse and use of Codeine exceeding prescribed amounts. The court found the plaintiff suffered a mild depression as a result of the injuries suffered in the accident, but concluded recovery from the depression was inhibited by over-consumption of prescribed medication and the use of cannabis. The court accepted medical evidence that treatment for depression may be inhibited by consumption of cannabis, and refused to award any damages for cost of future care for psychological counselling for depression because the plaintiff failed to comply with the doctor’s recommendations and resorted to cannabis.
- Was the plaintiff a recreational cannabis consumer pre-injury? If so, a court might refuse altogether or reduce an award for medical cannabis as a cost of future care in recognition of that past usage and the likelihood the plaintiff would have continued using cannabis in any event. For example, in Gulbrandsen v. Mohr, the plaintiff testified she had used cannabis recreationally before being injured in a motor vehicle accident, but only used for medicinal purposes post-accident; the court didn’t believe her, concluded she was attempting to obtain damages to support her recreational cannabis use and declined to award damages for cost of medical cannabis. Similarly, in Joinson v. Heran, the court reduced the plaintiff’s claim for medical cannabis by 50% because his prior recreational use would likely have continued in any event.
- Was the cannabis prescribed to treat symptoms or injuries the plaintiff suffered as a result of the negligent action giving rise to the claim? It goes without saying that a court will only award cost of future care for cannabis if it’s prescribed for symptoms or injuries suffered as a result of the negligent act giving rise to the claim. For example, in Wright v. Mistry, the court denied a claim for medical cannabis as a cost of care because the medical evidence showed that the cannabis had been prescribed for high blood pressure and stress, and that neither condition was caused by the accident giving rise to the action. Similarly, in Gulbrandsen v. Mohr, the plaintiff claimed $100 per week for medical cannabis, but the medical evidence didn’t support any award for future cost of care or lost earning capacity.
Cost Calculation. Claims for cannabis as cost of care can be significant. But even if a court awards cost of cannabis care, that doesn’t mean it will agree with the plaintiff’s cost calculations, and insurers still have plenty of opportunity to argue for a reduction in that cost. There are several ways in which courts can assess the cost of care claim.
- Acquisition. Such claims can be assessed based on the cost of acquiring product from a licensed producer or on the plaintiff’s production costs. The average cost per gram of medical cannabis from a licensed producer is readily available online and depends on the strain the physician prescribed and the licensed producer provides; each strain is priced separately and it appears the more popular strains are more expensive. For example, at Mettrum (a licensed medical cannabis producer located in Ontario), prices range from $3.60 to $9.60 per gram. A plaintiff who grows their own cannabis will probably also claim the cost of purchasing the plants and setting up and maintaining the mandated production and storage sites.
- Substitutes. Alternatively, compensation could be based on the medically equivalent amount of synthetic substitutes, such as Cesamet.
- “Accessories”. In addition to the cost of acquiring the cannabis, a plaintiff who intends to smoke it can also claim the cost of rolling papers or, if they intend to vape, a vaporizer. If the cannabis is to be made into an ointment, there will be additional costs for the ingredients and equipment necessary to make it.
- Future improvement. The award for medical cannabis should only cover the period the medical evidence supports. For example, in Hollyer v. Gaston, the plaintiff claimed the cost of medical cannabis for her lifetime – but had only been using it for a couple of months to help her sleep, she had side effects and there was no evidence she needed medical cannabis for the rest of her life. The court awarded her $5,000 for medical cannabis and over-the-counter pain medications. The award for the cost of medical cannabis should also account for the fact that participation in a pain management program should reduce the plaintiff’s reliance on pain medications, including cannabis, in the future.
- Prior Cannabis Consumption. An award for medical cannabis should also take into account the plaintiff’s prior use of cannabis.
For example, in Joinson v. Heran, the plaintiff claimed $822,308 as the cost of purchasing medical cannabis for the rest of his lifetime. But the court didn’t accept the plaintiff’s claim for the amount he actually used or the price he actually paid for it. The court calculated that as at May 2010, the plaintiff’s cost of consumption was $76 a day, equating to an annual cost of $27,740. It then limited compensation to five grams a day (the maximum Health Canada recommendation) at the price for which it could be purchased from a licensed producer. The evidence showed the products the plaintiff used were available at substantially lower cost from authorized dispensaries; using the lower prices, the court reduced the annual cost to $14,560 and calculated the present value of the plaintiff’s future needs at $79,167. It then reduced that by 50% to account for the plaintiff’s recreational use of smoked cannabis, then adjusted the figure to allow for improvement in the plaintiff’s chronic pain condition as he went through a pain management program. The court’s final figure: $30,000 (plus $4,000 damages for pre-trial medical cannabis).
Insurers facing cost of care claims should also consider the possible (and perhaps ironic) upsides to medical cannabis if not now, then down the road.
Failure to mitigate? At least one insurer has argued a plaintiff’s refusal to take medical cannabis as recommended by one of her physicians amounted to failure to mitigate. In Glesby v. MacMillan, the insurer made this argument, but the court refused to find the plaintiff failed to mitigate her losses, in part because she had sincere reservations about cannabis acquisition and use. The court distinguished this from her failure to follow another physician’s recommendation to pursue a treatment program at a pain clinic because the pain clinic would have helped demonstrate her physical condition and prognoses and determine the extent of her physical limitations. Although the insurer wasn’t successful in this particular case, it may be possible to succeed on that argument in the future – as and when ongoing studies into medical cannabis treatment outcomes are completed and the medical community works its way toward a consensus about the effectiveness of cannabis as a medical treatment.
A cheaper – or less harmful – alternative? At this point, cannabis is more expensive than prescribed opioids in Canada. An April 1, 2017 CBC report, “How high will the price of legal pot be?” found the average black market price of cannabis was $9.32/gram, the average price in illicit dispensaries was $10.00/gram and, as of March 12, 2017, the average price from Health Canada-licensed growers was $9.12/gram. At Health Canada’s maximum daily dosage of 5 grams/day at the average licensed grower’s price of $9.12/gram and 30 days/month, this equates to a cost of about $1,368/month. On the other hand, the cost of 80mg (.08grams)/day of hydromorphone in N.S. is about $130 a month. But that may change as the market grows and competition develops among licensed producers. And although there’s not yet a consensus among doctors about cannabis’s efficacy as a pain treatment, some doctors see a benefit in cannabis use as a means of reducing or eliminating use of opioids and related side effects. For example, in Joinson v. Heran, the plaintiff’s family physician and his psychiatrist saw him regularly and both supported use of medical cannabis to reduce his pain and, thus, reduce his dependency on opioids, opining the opioids affected his functioning more than the cannabis.
Please contact your McInnes Cooper lawyer or any member of the Insurance Defence Team @ McInnes Cooper to discuss this topic or any other legal issue.
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