Gersten v. Sun Pain Management (CA1 4/18/17)

An odd lawsuit and a bit of an odd appeal concerning whether using marijuana lets you force your doctor to treat you.

Defendant treated Plaintiff for chronic pain. When Plaintiff got a medical marijuana card Defendant discharged him. Plaintiff sued, arguing that the statute – medical marijuana use “does not . . . otherwise disqualify [the patient] from medical care’ – creates a private right of action. Plaintiff sought not only damages (though one wonders what they would be since he still needed a medical marijuana card) but also a mandatory injunction that Defendant continue to treat him! Defendant moved to dismiss for failure to state a claim.

At least in theory. Although the motion was captioned 12(b)(6) Defendant apparently argued in large part that using marijuana was against his medical advice. He proposed findings of fact to support that even though he hadn’t presented any evidence. Over Plaintiff’s objection, the trial court adopted them and granted the motion on that basis. (Which means that, although we just made fun of his lawsuit, Plaintiff seems to have been the only one in the lower court who knew or cared about rules of evidence or procedure.)

The Court of Appeals affirms. But it first clarifies the issue: “The only issue properly presented . . .  is whether a registered qualifying medical marijuana patient may assert a private cause of action.” The court addresses that issue, disregarding the findings of fact. In other words, it addresses an issue that wasn’t the basis of the trial court’s decision, reversing that court in order to affirm  it..

The court concludes that the statutory language was intended to ensure that medical-marijuana users be treated the same as non-users. It does not regulate the physician-patient relationship and “imposes no affirmative obligation on a physician to treat or continue
treating a . . . patient.”

(Opinion: Gersten v. Sun Pain)