Does your pot smoking matter in your medical malpractice case?

Does your pot smoking matter in your medical malpractice case?

Does your pot smoking matter in your medical malpractice case? 150 150 Lauren Ellerman

Recently I have had a number of clients call about medical malpractice cases add the following caveat: “Does my occasional pot smoking hurt my medical malpractice case?”

And up until last week I would say: “I don’t think so. We can likely file a motion in limine to keep that out and the jury won’t know about it.”

Well, that used to be my response. The courts however have recently changed my thinking on the issue. In a local medical malpractice case the defense lawyer (meaning – lawyer for doctor / hospital) argued successfully to the judge and eventually the Supreme Court of Virginia, that the plaintiff’s (meaning victim of malpractice who filed a lawsuit) pot use was relevant to her claim for damages, pain and mitigation of damages. 

Smart lawyering there. Sadly. The defense lawyer did it in a very religious and conservative jurisdiction knowing that most jurors there were not smokers, not in favor of smoking, and likely a little judgy (ok – allot judgy!)  toward those who did. And what I fear is that the case establishes a precedent wherein every defense attorney will now argue that a patient’s recreational pot use is relevant in every medical malpractice case because it goes to pain and suffering, mitigation of damages, blah blah, etc., blah. 

I am constantly amazed (yes I live in a non pot smoking bubble) how many people smoke. My mother who suffers from MS has been told by a number of strangers that she should smoke or eat or somehow get the weed to help with her MS. As debates rage on in various states about medical marijuana one things is clear – this issue is far from being over, totally decided and will likely impact the value of my client’s cases in the future.

How you might ask does pot smoking effect case value? Well, here is my prediction. 

DEFENSE LAWYER WANTS JURY TO KNOW YOU SMOKE POT IN VIRGINIA – because it’s against the law. And they want the jury to see you as a non-law abiding citizen. Someone who thinks the rules don’t apply and someone who is willing to break the rules and commit a crime. Why? Because jurors are more likely to give that crime committing pot head less money, or no money as the case may be. 

So, I’ve changed my answer. YES. Your pot smoking does effect the value of your case. Now let’s wrestle with that for a few years and see what happens. 



About the author

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at

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