Florida’s Medical Necessity Defense, Reconsidered

Surprisingly little has been written on Florida’s medical necessity defense, although the Amendment 2 campaign to legalize medical cannabis prompted some renewed discussion of the doctrine.  Still, medical necessity remains a barely examined and rarely applied legal concept in Florida.  It could gain importance as barriers to cannabis use, both recreational and medical, continue to tumble throughout the country.

Florida’s medical necessity defense has received scant attention.

In the 1991 case of Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), a Florida appellate court recognized that the common law defense of necessity may permit medical uses of marijuana.  The court held that for the defense to be valid, a defendant must prove three elements:

1. That the defendant did not intentionally bring about the circumstance which precipitated the unlawful act;

2. That the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and

3. That the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.

The present home of the First District Court of Appeal, which recognized the defense of medical necessity in 1991.

Jenks involved the criminal prosecution of a couple with AIDS who grew marijuana to relieve their symptoms, including nausea.  The appellate court found the defendants had proven medical necessity at trial, and therefore reversed their convictions.  The court had no trouble finding each of the three required elements were satisfied.  As the opinion notes:

1. The Jenks did not intend to contract their medical condition;

2. There was no treatment other than cannabis which could effectively relieve their symptoms; and

3. If their symptoms could not be controlled, the Jenks’ lives were in danger.

At a time when cannabis is gaining ever widening acceptance as a medicine throughout the country (even while Florida continues to treat it as an illegal substance), Jenks raises some important issues.

As to the first element, most patients, like the Jenks, do not intend to contract their illnesses.

And as to the third element, as more states recognize cannabis as a legal medicine (there are now 23 plus the District of Columbia), it becomes increasingly harder to make the case that patients with debilitating conditions should be denied access to an effective herbal remedy because of some countervailing “evil.”

At trial, Dr. Thomas Sunnenberg testified on behalf of the Jenks.

That leaves the second element: whether the defendant could accomplish the same objective using a “less offensive” alternative to cannabis.  What does this mean exactly? In Jenks, the couple’s doctor testified to the existence of a legal medication (Reglan) which is “a little more effective than marijuana” at alleviating nausea, but he also testified that it had to be administered intravenously in large doses, posing a risk of infection  to AIDS patients. Thus, it seems fair to say that under Jenks, cannabis need not be the only treatment possible.  The medical necessity defense may still be proven in cases where the alternative to cannabis has a substantial downside to the patient.

What kind and how much of a downside must be shown is not entirely clear from Jenks.  But it is safe to say that proving this element of the necessity defense is much easier in 2015 than it was in 1991.  For starters, there is now a large and expanding body of patients, caregivers, and medical professionals outside of Florida who may provide testimony as to the advantages of cannabis over other possible remedies.  There is also a growing body of published research demonstrating the relative virtues of cannabis.  For example, consider a recent Johns Hopkins study concluding that in medical marijuana states, the annual number of deaths from prescription drug overdose is 25 percent lower than in states where marijuana remains illegal.  Given cannabis’s well-documented safety record (no deaths directly due to acute cannabis use have ever been reported), such research makes it supremely difficult to argue that the commonly prescribed alternatives for pain management are “less offensive.”

The longer the prohibition on cannabis persists in Florida, the more likely it is that cannabis patients will assert the medical necessity defense in the event of prosecution.  And as time goes on, the likelihood of prevailing on such a defense  will increase in any given case, given the accumulation and expanding availability of evidence showing the advantages of cannabis in contrast to alternatives.  The availability of the medical necessity doctrine therefore presents the potential for de facto legalization of medical cannabis in Florida on a judicial, ad hoc basis.  While such a possibility would bring relief to some patients in the short-term, it is plainly deficient as a long-term policy outcome.  Litigation is an expensive and uncertain process ill-suited to determining a subject as critical and complex as the regulation of medicine for patients with debilitating conditions.  Such regulation should only proceed legislatively, as has occurred in the 23 states which have already approved medical marijuana.

The uncertain potential of the medical necessity doctrine should spur the Florida legislature to follow suit.

— By Jared H. Beck

Who’s To Blame For The Great Florida Condo Crash? Florida Appellate Court Suggests It May Be . . . Escrow Agents

While the global economy remains in the doldrums, recent reports have the South Florida condo market showing signs of recovery, even robustness.  Still, the fallout from the Great Real Estate Crash of several years ago remains undecided in critical ways.  This is especially true of the legal realm, which typically marches to a slow but steady drumbeat.

Yesterday, the Third District Court of Appeal — the Florida State intermediate appellate court with jurisdiction over Miami-Dade County — dropped a bombshell of sorts.  In a case called CRC 603, LLC v. North Carillon, LLC, the court endorsed the holding of a prior federal trial court decision called Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc.   As I wrote in 2010, the Double AA court concluded (to the surprise of many in the field) that Florida developers must establish two separate escrow accounts to hold most preconstruction condominium deposits in order comply with Section 718.202 of the Florida Statutes.

The law in question provides buyers with a right to cancel the contract when the developer does not comply.  Because many developers established only one escrow account to hold deposits, many buyers have a right to cancel under the holding of Double AA.  Now that the Third District Court of Appeal has said it agrees with Double AA, this holding will have the force of binding precedent in Florida (unless, of course, it is overturned by the Florida Supreme Court).

What is especially intriguing about this opinion (or perhaps troubling, depending on where you are sitting) is where the 3rd DCA, at least implicitly, paves the road to liability for the condo market crash debacle.  In condominium projects, it is typically the escrow agent, not the developer, who bears responsibility for complying with the rules and regulations governing escrow accounts.  If developers did not set up two separate accounts like they were supposed to, it is because, in my experience, the escrow agents they hired chose not to do it that way because they didn’t think it was necessary under their (incorrect) reading of the statute.

As a result, we may see a yet another wave of litigation stemming from the condo crash: developers suing escrow agents for failing to comply with the escrow statute on the theory that this failure exposed developers to losses from buyer cancellation claims.  Because many of the escrow agents were attorneys or law firms, there may be claims for legal malpractice as well.  So while many buyer lawsuits are now working their way through the legal system and finally reaching resolution, there may well be a next chapter in the litigation story.

By Jared H. Beck, Esq.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Jared H. Beck has a law degree from Harvard Law School. His law firm, Beck & Lee Trial Lawyers in Miami, is dedicated to the practice of business and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. Mr. Beck’s expertise also includes issues arising under purchase contracts for real estate, including condominiums, condo-hotels, single-family homes, and commercial property. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Mr. Beck can be reached at 305-789-0072 or jared@beckandlee.com