Prescription for Trouble

1996’s California Proposition 215, the Compassionate Use Act, added section 11362.5 to the California Health and Safety Code, legalizing marijuana use for medical purposes.  Despite the passage of this act, marijuana use remains illegal under federal law.  The conflict between state and federal laws on the subject have led to such confusion that last week Paula Dow, Attorney General for the State of New Jersey, asked the Obama Administration for clarification on its policy.  The policy the administration had announced in 2009 was that it would not prosecute marijuana users who comply with state laws.  According to Americans for Safe Access, an Oakland based group, the administration has not upheld this promise.  Americans for Safe Access recently released a report card claiming that the federal government has actually stepped up enforcement considerably since the Bush administration.

But as wary of federal enforcement as California’s providers of medical marijuana should be, there is another group they should be increasingly concerned about: their own customers.  Last month, the parents of a Cal Poly student filed a wrongful death action in the San Luis Obispo County Superior Court.  While under the influence of marijuana, cocaine and alcohol, the 21 year old student attempted to cross Highway 101 on foot and was killed by a motorist.  Among the defendants named in the suit was the doctor who provided the student with his medical marijuana prescription.

What makes this claim novel is that as long as buying marijuana was illegal, drug dealers would have been shielded from civil liability for the acts of their intoxicated clients because the buyers were in pari delicto, or in equal fault.  The Restatement Second of Torts, section 889, comment b, page 352 illustrates the concept:

[I]f the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection.

Thus, while marijuana use was illegal (presumably because of its intoxicating effect), sellers of the drug would have had an affirmative defense protecting them from civil liability for things done by their customers while high.  But thanks to the Compassionate Use Act of 1996, those who lawfully make marijuana available for medical purposes may increasingly find themselves vulnerable to damages for stupid things done by their stoned patients.  Ironically, the legalization of marijuana use and the risk of civil liability may be able to accomplish what decades of law enforcement have been unable to do: cause the risks involved in selling the drug to outweigh the profitability.

Given the relative newness of the field and the uncertainty of the law, there are few resources that discuss liability for medical marijuana.  If you are a medical marijuana provider who has been sued by your patient (or are a patient who wishes to sue your provider), the Alameda County Law Library does have several resources on medical malpractice that address liability for drug prescriptions.  In addition, the library has numerous titles on personal injury and general tort litigation.

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