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Recent Court Case Decides Experimental Surgery Not Allowable Expense For Injuries in Michigan Car Accident

Posted on Aug 21, 2012

In Krohn v. Home Owners Ins Co. ___ Mich ____ decided July 29, 2011 Docket No. 140945, the Michigan Supreme Court issued a 4-3 decision in a case involving the compensability of experimental treatment in a no-fault PIP case. In Krohn, the Plaintiff suffered "an extremely severe spinal fracture" in a van/motorcycle accident that left him a paraplegic. He sought PIP benefits from his PIP insurer Home Owners Insurance Company (aka Auto Owners ) to cover costs incurred for an experimental surgery performed in Portugal, an olfactory en-sheathing glial cell transplantation, which involves transplanting tissue from behind the patient's sinus cavities (which contain stem cells) to the injury site. It was undisputed that the procedure was experimental and not a generally accepted treatment for the plaintiff's injury.

The issue was "whether this experimental procedure was a reasonably necessary service for plaintiff's care, recovery, or rehabilitation under § 3107(1)(a) of the Michigan No-Fault Act. In the decision, the Court rendered several significant holdings. The court held that if a medical treatment is: (1) experimental and (2) not generally accepted within the medical community, an insured seeking reimbursement for the treatment must, at a minimum, produce objective and verifiable medical evidence that the treatment is efficacious.

"A treatment or procedure that has not been shown to be efficacious cannot be reasonable or necessary under" the No-Fault Act. The Court went on to state that, whether a product, service, or accommodation is reasonably necessary for the insured's care, recovery, or rehabilitation must be determined under an objective standard an insured's subjective belief is insufficient.

In this case, the Court concluded that the plain-tiff's experts only opined that his decision to undertake the procedure was an "understandable" personal decision that offered him "only a medically unproven possibility,' or hope, for an efficacious result."

Thus, the Court held that the objective and verifiable medical evidence presented at trial failed to show that the experimental surgery at issue was in any way efficacious in the plaintiff-insured's care, recovery, or rehabilitation. Accordingly, the Court held that the procedure was not an allowable expense under § 3107(1)(a).

Lawrence J. Buckfire
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