Prescriptions for medicinal marijuana are becoming more common, particularly for chronic pain patients. There is rising concern among physicians regarding opioid addiction, and some are now prescribing medicinal marijuana as an alternative pain treatment. Though there is no consensus among medical experts on the issue of the efficacy of cannabis as a pain treatment, there is a judicial trend that recognizes that some patients with chronic pain obtain significant benefit from the use of medical cannabis.
The cost of medicinal marijuana can be significant compared to the alternative opioid pain medications. Health Canada has stipulated a maximum daily dosage of 5 grams/day. The cost per gram charged by licensed growers varies by manufacturer, strain, and blend - but the average cost is in the range of $8.40. This represents a cost of about $1,260 per month, compared to the cost of opioids such as hydromorphone, which costs approximately $120-$140 per month. For a claimant with permanent chronic pain who is prescribed medicinal marijuana for pain treatment, the costs can amount to $15,000 per year or more, and over a lifetime (for instance a 50-year life expectancy) can amount to more than $400,000 (present value).
Health Care and Auto Insurers (responding to Section B Medical Expense Claims and Personal Injury Claims for Future Medical Care Costs) are reluctant to accept claims related to medicinal marijuana prescriptions and use several different arguments in the attempt to avoid or reduce payment of such claims.
Recent court cases reflect the positions taken by insurers and the arguments raised to defeat claims for marijuana prescription costs. The following are some of the arguments brought forward, and recommendations that may aid in raising your chance of success in establishing a valid claim under Section B in the health care policy:
- Claimant does not have a proper prescription or “medical document” form as required by Health Canada under the Access to Cannabis for Medical Purposes Regulations (ACMPR), or the treatment was not prescribed by a qualified health-care practitioner (defined by Health Canada as a medical physician or licensed nurse practitioner). In one case, a claim was not accepted because the prescription came from a naturopath who was not considered a qualified medical practitioner. In another case, the claimant’s failure to have a proper prescription, along with failure to follow the Health Canada regulatory process for permission for use of marijuana, resulted in her claim for future care costs of cannabis treatment to be rejected by the court. It is recommended that the proper regulatory application procedure for Health Canada approval be followed and approval be obtained based on a completed “medical document” form that prescribes such treatment;
- No proper basis for the physician’s prescription. If a physician completes a “medical document” because the patient asks, or solely based on the patients claim that it relieves pain, this may be insufficient medical evidence to support a medical care cost claim. The issue is whether such treatment is reasonably necessary in each case. The claimant must show that the prescribing physician researched the issue, considered medical literature about such treatment, and reached an informed decision on treatment for the patient’s condition. In one case, a family physician testified that he would not recommend such treatment but agreed to prescribe it at the request of the patient. In this case, there was insufficient medical evidence supporting the ongoing use and the claim was denied. Unless your prescribing physician has done research and believes this treatment is reasonable and necessary, your claim will not likely be successful. In such a case, you should consider a referral to a medical specialist with expertise in chronic pain treatment that includes the use of medicinal marijuana, and who can provide the required expert opinion;
- Insurers will argue that because marijuana does not currently have a Drug Identification Number (DIN) under the federal Food and Drugs Act, it does not meet the definition of “drug” under the insurance policy. Such an argument will likely only succeed where the insurance policy specifically defines “drug” as requiring a DIN, so it is important to check the specific wording of your policy. Having a proper “medical document” prescription will assist in persuading a court to reject such an argument;
- Insurers may argue that marijuana is not a “medicine.” Many health benefit policies provide coverage for drugs and necessary “medicines” (generally interpreted as including more than drugs). If properly prescribed for treatment of a medical condition, medicinal marijuana will likely be considered a "medicine" – again, a proper “medical document” and approval will assist in establishing a claim;
- Insurers may raise the argument that medicinal marijuana is not “medically necessary” – but unless the policy narrowly defines “medically necessary,” should it be properly prescribed for chronic pain treatment, a court will likely find coverage, given that conventional pain medications are normally considered “medically necessary” and are covered;
- Insurers may argue that medical marijuana is not a “reasonable treatment” when considering the specific health issues of the patient. For example - smoking marijuana when you have a respiratory condition will not likely be considered reasonable. If you can provide evidence that the marijuana is prescribed for chronic pain treatment and will result in a reduced reliance on opioid medications, this will help establish reasonable treatment. Patients with a history of addiction or depression are not likely to be considered for marijuana as reasonable treatment. This is based on evidence that marijuana use can inhibit the treatment for depression. In one court case, the claimant failed to comply with the doctor’s recommendations to abstain from cannabis use when taking anti-depressant medications, which resulted in the court refusing damages for the cost of future care for psychological counselling for depression.
- Insurers may argue that because of the claimant’s pre-accident recreational use of marijuana, there is a likelihood of continued use. In such a case, a court may reduce the future claim amount or deny it completely;
Whether a claimant will be successful in advancing a claim for the cost of medical marijuana is a complicated issue and requires the proper medical evidence, consideration of the above issues and factual evidence.