Posted on: 26 October 2017Share
Although marijuana has been found to be effective at treating certain medical conditions (e.g. chronic pain), it's not appropriate for every person. However, if you are injured from using the drug after your doctor recommends it, it may not be possible for you to sue the healthcare provider for your damages and losses. Here why that is and what your options are if you still want to pursue a case.
Doctor's Can't Prescribe Marijuana
When people discuss being approved to use marijuana to treat their medical conditions, they often talk in terms of their doctors prescribing the drug to them. This is an inaccurate interpretation of the situation. Even though almost at least 29 states have legalized the use of marijuana, the drug is still listed as an illegal substance at the federal level.
Because of this, doctors are prohibited from prescribing or dispensing it to their patients, regardless of those patients' medical needs. So what's actually happening in doctors' offices is the healthcare professionals are only letting patients know their conditions qualify them to be approved to use the drug according to state law and signing whatever paperwork is required for those patients to obtain medical marijuana cards.
Since the doctor is not actually prescribing or dispensing the drug, he or she cannot be held legally liable for any problems a patient may experience with it. The only time you could sue a doctor for compensation for injuries you suffered from smoking marijuana if the doctor actually sold it to you while working at a cannabis dispensary. Even then, though, the case would likely be litigated as a product liability issue rather than medical malpractice, since your relationship to the doctor in that context would be one of business and customer rather than doctor and patient.
Torts That May Apply to Your Situation
In order to bring a case to court, you must show you have cause to sue, i.e. there is a law or tort the doctor violated when treating you. As mentioned previously, the doctor doesn't actually prescribe or dispense cannabis, so you would not have a cause to sue on those grounds. However, you may be able to sue the healthcare provider for failure to disclose the risks of using the drug.
The law requires doctors to disclose all the relevant details about your treatment, such as what it entail and any side effects you may experience, so you can make an informed decision about whether you want to undergo it. If a doctor recommends you use marijuana to mitigate the effects of your condition but fails to discuss the pros and cons of this option, you could claim he or she failed to provide you with all the information you needed to make the right decision.
One problem with this offense, though, is that many of the side effects of marijuana are fairly well-known, so you would have to convince the judge that you honestly didn't know or couldn't have known about them. Additionally, again, the doctor isn't actually prescribing or dispensing the drug to you, but only providing a recommendation. Thus, in this instance, the court may feel you bear some responsibility to do the appropriate research needed to inform yourself of the risks.
Another way you could sue for damages is if the doctor knew, or should have know, marijuana wasn't an appropriate treatment for your condition. For instance, cannabis can make anxiety worse when used for a long period of time, leading some people to develop psychosis. You could sue the doctor for negligence in this instance for recommending a treatment that would only harm you more than it helped you.
Successfully suing for medical malpractice in general is challenging, but throwing medical marijuana in the mix could make it an impossible task. Contact a personal injury attorney, like one from Shay & Associates, for advice about and assistance with your case.