Fall 2018

Alternative/Experimental Medical Treatments in Virginia Liability

Whether it’s a personal injury from an automobile or trucking accident, a slip and fall, or any other liability claim, Virginia permits recovery of damages for loss of income and earning capacity, past and future pain and suffering, disfigurement, inconvenience, and past and future medical expenses.

In addition to traditional medical expenses, sometimes alternative or experimental medical treatments, also known as “common alternative medicine”, will be included in a plaintiff’s medical expenses. These alternative treatments can be used on their own or in conjunction with traditional medicine. More importantly, they could be considered by a jury in determining how much to award a plaintiff or they could be part of a plaintiff’s demand package and therefore need to be evaluated/considered by an attorney, an adjuster, or a third-party administrator (“TPA”) in evaluating a claim for settlement.

Chronic pain management is a medical expense typically seen in a plaintiff’s  future medical expense calculations. Chronic pain management usually involves main medications/narcotics, but as pain medication addition is becoming more prevalent, plaintiffs and their doctors will likely seek alternative means to manage chronic pain.

Physical therapy is a common alternative treatment, but there are many others. Water aerobics, acupuncture, and chiropractic treatments can be part of a long-term pain management plan in addition to physical therapy. Some evidence suggests that stress management and relaxation therapy can improve pain symptoms as well. This evidence is based on the idea that when stressed, our bodies go into fight-or-flight mode, which causes an increase in blood pressure, heart rate, and tense muscles. As such, it would not be surprising to see more stress reduction techniques included as part of a plaintiff’s future medical expense plans. Some alternative treatments, related to stress reduction, include yoga, hypnotherapy, guided imagery, biofeedback, massage therapy, and herbal remedies or natural supplements.

Medical marijuana may be gaining traction as a potential alternative pain treatment as well. Proponents of marijuana and cannabis oils as alternative treatments say the medicine helps to relieve pain, inflammation, seizures, muscle spasms, and nausea—all symptoms common to plaintiffs with serious personal injuries.

This year (2018), Virginia lawmakers expanded legislation first passed in 2015 which gave medical marijuana users an affirmative defense for the possession of cannabis oils for treatment of severe epilepsy. This protection has now been expanded to allow doctors to recommend the oils for patients with any medical condition that can be treated by it. By the end of this year, Virginia plans to issue licenses to five companies that will be permitted to produce cannabidiol (more commonly known as “CBD”) or tetrahydrocannabinolic acid (“THC-A”) oil for medical use (though Virginia will limit the THC levels of these oils to five percent).

Because the oil products will be dispensed to patients who have a written recommendation from a doctor to treat the symptoms of any diagnosed condition or disease that could be treated with the oil, there is a potential for expenses associated with medicinal marijuana use for chronic pain management from personal injuries to make their way into future medical expense plans.

From a litigation standpoint, it will be important to continue to evaluate personal injury/liability claims on a case by case basis while keeping in mind that a jury could consider any alternative treatment propounded by a plaintiff as part of his/her future medical expenses in awarding damages—including medical marijuana. Attorneys, insurance adjusters, and TPAs should be prepared to do the same in analyzing the value of a claim for settlement purposes.

For more information about this article, please contact Elena G. Patarinski at 804.932.1996 or