In the second-to-last Michigan Supreme Court decision of the term, the court has found that a first party no-fault plaintiff must show verifiable and objective medical evidence that an experimental procedure is effective in order to prevail.
In Krohn v. Home-Owners Insurance Co., the plaintiff went to Portugal for experimental spinal surgery after suffering catastrophic injuries in an auto accident . The surgery wasn’t FDA approved and wasn’t available in the U.S. He was warned by his doctor that the surgery was dangerous, experimental and likely wouldn’t be covered by insurance.
The no-fault insurer told the plaintiff it wouldn’t pay for the surgery, but would pay for tests to see if he was a candidate and therapy sessions after. After having the surgery, he sued the no-fault insurer for the cost of the surgery.
After the surgery, the plaintiff reported some improvement in his condition. The majority, in an opinion written by Justice Brian Zahra, said experimental procedures aren’t all excluded by coverage, but more is required than the plaintiff’s perceptions that it worked/will work.
We reject defendant’s position and conclude that experimental treatments are not necessarily barred from being compensable under the no-fault act. The ultimate question whether the surgical procedure at issue here is a covered expense under the no-fault act does not turn on its status as experimental. Rather, like all claims for allowable expenses, the question turns on whether the procedure was reasonably necessary for plaintiff’s care, recovery, or rehabilitation.
Zahra wrote that the test for whether something is “reasonably necessary” must be an objective standard. Specifically, in footnote 47, the majority approved of the Court of Appeals’ assertion that using hindsight evidence, i.e. “it worked” “is inconsistent with making an objective determination of whether medical treatment was ‘reasonably necessary.’”
Zahra defined the experimental procedure test as follows:
Thus, a service, product, or accommodation must be (1) objectively reasonable and (2) necessary for an insured’s care, recovery, or rehabilitation. If, as in this case, the service under consideration is an experimental surgical procedure, the insured must present evidence that the surgery may result in care, recovery, or rehabilitation. In other words, there must be evidence that the surgery is efficacious. Further, because a surgery involves the exercise of medical judgment, the efficacy determination must be based on objective and verifiable medical evidence. Experimental surgical procedures lacking objective and verifiable medical evidence of their efficacy cannot be “reasonably necessary” simply because it cannot be shown to effect the insured’s care, recovery, or rehabilitation. …
If a surgical procedure is experimental, an insured cannot establish its reasonable necessity under MCL 500.3107 unless expert testimony indicates that the surgery presents a reasonable chance that it will be efficacious in the injured person’s care, recovery, or rehabilitation.
MCL 500.3107(1)(a) does not require that medical treatment be shown to have gained general acceptance within the medical community. Rather, an insured must present objective and verifiable medical evidence that medical treatment is efficacious in an injured person’s care, recovery, or rehabilitation. If there is objective and verifiable evidence that an experimental surgical procedure is efficacious, the finder of fact can begin to make an informed decision in regard to whether the treatment was reasonably necessary by considering whatever factors were relevant in that case, which may include but are not limited to the severity and chronicity of the condition, the outcomes of any previous treatments, the likelihood that alternative treatments would be efficacious, a personal physician’s recommendation in conjunction with the a patient’s preference, and both the short-term and long-term risks and benefits. Absent objective evidence to establish that the experimental surgical procedure is at least efficacious, there would not exist a material question of fact about whether the medical treatment was reasonably necessary to the care recovery or rehabilitation of an insured.
In a dissent, Justice Diane Hathaway accused the majority of adding to the statute:
The majority holds that in order for an expense related to an experimental surgical procedure to be “reasonably necessary,” a court must first determine as a matter of law that there is “objective and verifiable medical evidence establishing that [the experimental surgical procedure] is efficacious.” Further, the majority holds that plaintiff did not meet the “objective and verifiable medical evidence” standard because Dr. Lima’s research “was unsupported by any controlled studies, it was not subject to peer review, and the medical evidence was not debated in scholarly publications.” Thus, the majority’s new standards add language to the statute that is simply not there.
She also disputed the majority’s result under its own holding, stating that 40 of the 110 people who have had the surgery came from the doctor whose opinion the majority relied upon to dispute the “efficaciousness” of the procedure, the ironically named Dr. Hinderer.
Only one opinion left.