Moral damages sought for refused medical marijuana treatment
The mother of a girl who died before receiving a scheduled but ultimately cancelled treatment with medical marijuana has sued the medical institution and doctor who decided to refuse this treatment. She demands that the hospital be ordered to pay PLN 150 thousand for a charitable purpose.
The case is conducted within the framework of the HFHR Strategic Litigation Programme. The claimant is represented on a pro bono basis by Marcin Ciemiński, Monika Diehl, Sylwia Gregorczyk-Abram and Michał Magdziak, attorneys with Clifford Chance.
Medical marijuana treatment
The claimant’s daughter was diagnosed with drug-resistant epilepsy just a few months after her birth in 2012. There were days when the girl had dozens of epileptic seizures. Traditional drug therapies and even a treatment in a specialized centre abroad did not bring any improvement. The woman started giving her daughter a preparation that contained medical marijuana (cannabinoid, CBD), legally marketed in Poland. The CBD preparation proved more efficient and limited the number of seizures, but it did not stop the girl’s suffering.
In 2014, the woman learned that one of the medical institutions in Warsaw employs a doctor who offers treatment with the use of stronger preparations, containing not only CBD but also THC – a psychoactive substance which, in appropriate doses, may have therapeutic effects. This treatment was very effective in other children with drug-resistant epilepsy, leading to a significant decrease in the number of seizures. In 2015, the doctor recommended that the claimant’s daughter should use Bediol and Bedica THC-based preparations. These were not available in Poland and had to be imported from the Netherlands within the framework of the “targeted import procedure”, which required a doctor-issued requisition approved by the Minister of Health. However, before the doctor had the opportunity to issue a requisition document, the hospital had initially revoked his ability to treat epileptic patients and then dismissed him (unlawfully, as it was later established in employment court proceedings).
A new doctor refused to treat the claimant’s daughter with Bediol and Bedica, stating that the hospital generally did not provide such a treatment, which was contradicted by the fact that other patients were treated in this way. Despite the difficulties created by the hospital, the claimant, assisted by doctors from another institution, finally managed to initiate the procedure of targeted import. Unfortunately, before the medicines were delivered, her daughter died of a violent epileptic seizure in 2016.
Hospital and doctor sued
In the statement of claim, the woman argues that the hospital and the doctor violated her personal right, namely the right to maintain and sustain family and emotional ties with her daughter. The unjustified refusal to provide effective treatment for her daughter has exposed her to serious psychological suffering, which deteriorated after the child’s death. The therapy denied to the claimant’s daughter may have led to a decrease in the number of seizures. This is a conclusion based on the outcomes of treatment with medical marijuana in other patients to date and also backed by the improvement of the daughter’s state of health following the inception of her CBD treatment. This, in turn, would allow the woman to maintain a more complete contact with her daughter and would save her from the necessity of watching the girl’s distress.
The denial of treatment with Bediol and Bedica was also inconsistent with the indications of current medical knowledge and therefore unlawful under the Patients’ Rights Act. The claimant also alleges that her daughter’s right to die and dignity was violated. As a compensation for her moral injury, the Foundation’s client seeks an award of PLN 150,000 for a charitable purpose, namely a foundation dedicated to the promotion of treatment with medical marijuana, which she founded after her daughter’s death.
The action brought by the mother led to a landmark case. According to the Foundation, a denial of potentially effective drug treatment, which is based on vague and unconvincing arguments constitutes, among other things, a violation of the right to the protection of one’s life and health. Such a violation occurs in particular where, as in this case, all other available remedies have proved ineffective. Recently, the problem of inaccessibility of medical marijuana has been partially solved by the adoption of a law that enables physicians to use CBD and THC preparations without the necessity to carry out the targeted import procedure. However, practical access to such medicines remains severely restricted.