Cost of Future Care – Medical Cannabis

Cost of Future Care – Medical Cannabis

Let’s review a recent decision in which a medical cannabis program was deemed medically justified and reasonable, and resulted in the Court awarding $12,000 for cost of future care, after reviewing all the negative contingencies that were relevant in this case.

The case is referenced as: Carillo v. Deschutter, 2018 BCSC 2134

Medical Justification for medical cannabis as it pertains to this decision only:

  • Efficiency of cannabis program being recommended
  • Benefits of the treatment
  • Program should be supervised by a medical practitioner
  • Product should be purchased through a Health Canada dispensary
  • the strain of cannabis being recommended was high in Cannabidiol (CBD), a non-psychoactive cannabinoid, and low in Tetrahydrocannabinol (THC), a psychoactive cannabinoid
  • Recommended treatment was in 3 forms:

 (i) topical cream to be rubbed into the muscle spasm at least three times a day;

(ii) tincture of oil to be taken with liquid drink (1 to 2 drops at night); and

(iii) oral capsule to be taken twice daily (one in the morning and one at night).

  • the objective is for the cannabis program to assist with pain management, mood and sleep.
  • there is also a goal that the Plaintiff would be gradually weaned off the current pain medication, which has its own side effects
  • there was not a recommended duration of time to be on the medical cannabis program
  • receipts were produced by the Plaintiff for the cannabis products he purchased
  • Court reviewed the Plaintiff’s claim on the costs actually incurred, calculations for lifetime (not reasonable)
  • Court looked at evidence of Plaintiff reducing existing medications (gabapentin)

Plaintiff’s claim

Cannabis balm (30 grams pers week)      $1,092 annually Multiplier: $22,218         Claim:  $44,000

Cannabis tincture oil                                       $121.00                 Multiplier $2,475

Capsules (2 per day)                                       $2,190 annually Multipler $44,557.

Plaintiff’s Claim for Cost of Future Care / Medical Cannabis:  $91,032.00

Defence Arguments

  • Plaintiff suffers from psychological illnesses which specifically preclude consideration for medical cannabis (See Standards of the B.C. College of Physicians and Surgeons);
  • Plaintiff has used illegal substance
  • Plaintiff was involved in criminal activities related to cocaine use for a period of time
  • Red flags for “vulnerability to illegal drugs and criminal elements”
  • own treating physicians have not recommended medical cannabis
  • the evidence surrounding the efficacy of medical cannabis as a treatment of the plaintiff’s pain is not robust
  • the alleged evidence supporting use of medical cannabis is not in evidence before this Court;
  • the Plaintiff’s chronic pain appears to be controlled by conventional prescription drugs; and
  • the Plaintiff has failed to follow the expert’s own guidelines
  • the Plaintiff has not purchased medical cannabis from licenced producers or in a program supervised by a physician.

The Court accepted that although the Plaintiff was purchasing medical cannabis from dispensaries without an authorization, there was no intention to breach Health Canada rules or regulations.  The Plaintiff simply was unaware that he needed an authorization from a treating physician.  (He was showing his medical report to the dispensary to purchase medical cannabis).  His intention was to simply pursue treatment that was effective for his chronic pain.

The Court also accepted that the Plaintiff was now informed of the proper process, and is now aware that the program must be supervised by a medical practitioner, and has agreed to purchase medical cannabis products through a Health Canada supplier.

Referenced Cases in Support of Medical Cannabis

Wright v. Mistry, 2017 BCSC 239 at para. 84; Amini v. Mondragon, 2014 BCSC 1590 at paras. 133-136;

Chavez-Salinas v. Tower, 2017 BCSC 2068 at para. 539.

One of the key factors the Court considered in this case is the fact that the Plaintiff was using cannabis balm, tincture oil and capsules and that these forms of medical cannabis were effective in treating the Plaintiff’s pain symptoms.

The Court further stated:

  • consumption has not produced any negative side effects
  • Plaintiff has also pursued physiotherapy, chiropractic and massage treatments without success
  • Plaintiff has also pursued injections without benefit
  • Prescription pain medication provides some relief to his symptoms but this does not control the pain
  • Plaintiff’s mental health condition is being monitored by his care provider
  • Cocaine use was 6 years ago
  • There is no evidence of any issue arising since that time

[161]     All things considered, I conclude that the medical cannabis program recommended by Dr. Hershler is medically justified within the meaning contemplated by the authorities and that it is reasonable to make an award for the costs of the cannabis as part of Mr. Carrillo’s future pain management plan.

The Court awarded the sum of $12,000 for medical cannabis, after taking into account the relevant contingencies.