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Volume XXIII, No. 25, August 29, 2011
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
James L. Borin & Simeon R. Orlowski
SUPREME COURT HOLDS THAT EXPERIMENTAL PROCEDURES MAY BE COMPENSABLE UNDER NO-FAULT ACT
CONTRIBUTOR – EMILY L. PARTRIDGE
In Krohn v Home-Owners Ins Co, ___ Mich ___ (2011), released on July 29, 2011, the Michigan Supreme Court rejected the no-fault insurer’s argument that all experimental procedures, as a matter of law, are not reasonably necessary under the No-Fault Act.
On December 11, 2001, the Plaintiff was struck head-on by a large van while riding his motorcycle and suffered a severe spinal fracture that left him paraplegic. While investigating treatment options, the Plaintiff discovered a procedure known as olfactory ensheathing glial cell transplantation, which is an experimental surgery being performed in Portugal. The procedure is not approved by the United States Food and Drug Administration and therefore cannot be legally performed in the United States. In addition, there is insufficient existing research on this procedure to allow for clinical trials, including controlled studies, peer review, and publication for FDA evaluation.
The Plaintiff discussed the procedure with Dr. Steven Hinderer, the medical director of the Center for Spinal Cord Injury Recovery Program. Dr. Hinderer explained to the Plaintiff that he could not endorse or in any way recommend the procedure because it was highly experimental, had not yet been approved by the FDA, could not be legally performed anywhere in the United States, and lacked medical evidence to establish its efficacy.
The Plaintiff underwent the procedure anyway. Upon returning to the United States, he began a grueling physical therapy program. Afterwards, he noticed improvements, such as sometimes being able to move his legs, crawling, and controlling bowel and bladder movements. However, Dr. Hinderer opined that the grueling physical therapy the Plaintiff underwent alone could have accounted for the Plaintiff’s improvements.
Following a long and thorough analysis of the various issues, the Michigan Supreme Court, in an opinion authored by Justice Zahra, held the following:
(1) Experimental medical treatments are not, as a matter of law, automatically barred from being compensable under the No-Fault Act. Instead, the specific procedure must be examined to determine whether it is reasonably necessary for an injured person’s care, recovery, or rehabilitation.
(2) The term “reasonably” must be determined utilizing an objective perspective, and cannot be based merely on a subjective perception that a service is necessary for an injured person’s care, recovery, or rehabilitation.
(3) In order to demonstrate that an experimental procedure is reasonably necessary, the injured person must present evidence that there is a “reasonable chance” that the procedure will be “efficacious” in the injured person’s care, recovery, and rehabilitation with expert testimony. As an aside, “efficacious” is defined in the dictionary as “capable of having the desired result or effect; effective as a means, measure, remedy, etc.”
(4) An injured person is not required to prove that an experimental procedure has gained general acceptance in the medical community in order to prove that the procedure will be efficacious.
(5) However, a trial court does have an obligation, under MRE 702, to ensure that any expert testimony or scientific evidence admitted is based on sufficient facts or data, is the product of reliable principles and methods, and that the witness has applied the principles and methods reliably to the facts of the case. Objective and verifiable medical evidence does not necessarily require controlled studies subject to peer review or scholarly publications.
The Supreme Court noted that the above was possible, for example, due to the fact that the FDA has multiple phases of testing before a medical procedure or product receives full FDA approval. As such, there are treatments wherein objective and verifiable medical evidence of efficacy exists, but are still deemed in the experimental or research phase.
In applying the above analysis to the Plaintiff’s case, the Supreme Court focused on the medical expert testimony. The Court found that Dr. Hinderer did not endorse, recommend, or prescribe the procedure to the Plaintiff. Most importantly, Dr. Hinderer testified that no one knew whether the surgical procedure increased the chances of an injured person’s potential for recovery.
At the end of the day, the holding in Krohn, supra, is not inconsistent with the holdings on prior cases regarding this issue, such as Spect Imaging, Inc. v. Allstate, 246 Mich App 578 (2001).
As an aside, I believe the above analysis can and should also be applied to claims for medical marijuana under the Michigan No-Fault Act. Per Krohn, it would seem that medical marijuana cannot automatically be deemed uncompensable. However, marijuana for medical purposes has not been approved by the FDA. Moreover, a physician cannot “prescribe” it as it is a Schedule One substance under the Controlled Substances Act. However, a plaintiff may still be able to prove that medical marijuana is compensable if a medical expert will testify as to the efficaciousness of marijuana as treatment for an injured person’s care, recovery, and rehabilitation. To that end, a trial court will need to determine if the expert’s testimony is based on (1) sufficient facts or data, (2) is the product of reliable principles and methods, and (3) that the witness has applied the principles and methods reliably to the facts of the case.
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BASICS OF NO-FAULT CLASS – FALL 2011
Please note that we are approaching the end of registration for Mr. Borin’s Basics of No-Fault course in Lansing. Classes begin on September 12, 2011 and continue every Monday evening through November 7, 2011 from 6:00 p.m. to 8:30 p.m. Deadline for registration is September 7, 2011. The Course Curriculum is attached for your review.
Please contact Denise Tedder at dtedder@garanlucow.com to register for the class. When registering, please provide a current email address as there will be a reading assignment sent to the participants in advance of the first class.
BASIC NO FAULT INSURANCE LAW
COURSE CURRICULUM- FALL, 2011
JAMES L. BORIN – INSTRUCTOR
LANSING
6:00 – 8:30 p.m.
I. Introduction – Why No Fault?
9/12/11 Course Approach and Review of Materials
A. History of No Fault
B. Discussion of Mandatory Insurance
C. Review Supplemental Materials “Transfer of Title and Registration”
II. Mandatory Insurance and Definitions
9/19/11 The Contract of Insurance – Certificate of Insurance – Rules of Interpretation – No Fault Definitions; Security Required; Penalties for Non-Compliance – Sections 3101, 3102 and 3103
A. Review No Fault Manual (pp. 1-16)
III. Coverage and Exclusions
9/26/11 – No Fault Coverage (i.e., Entitlement) – Sections 3105(1), (2), (3) and (4)
10/3/11 A. Review No Fault Manual (pp. 17-27)
Exclusions from Coverage – Sections 3106(1), (2) and (3)
B. Review No Fault Manual (pp. 29-36)
Exclusions from Coverage – Sections 3113(a)(b)(c) and 3163
C. Review No Fault Manual (pp. 71-74; 141-144)
IV. Which Insurer Pays?
10/10/11 Order of Priorities – Motor Vehicle Occupants – Sections 3114(1)(2)(3)(4) and 3114(5) – and Motorcyclists
10/17/11 A. Review No Fault Manual (pp. 75-82)
B. Review Supplemental Materials – “Priority of Insurers”
Order of Priorities – Non-Occupants – Sections 3115(1)(a)(b)
C. Review No Fault Manual (pp. 83-86)
Order of Priorities – Assigned Claims Facility – Sections 3171-3176; Out-of-State Accidents – Section 3111; Prorata Sharing – Sections 3114(6) and 3115(2)
D. Review No Fault Manual (pp. 145-149; 67-68; 86)
V. Benefits – Allowable Expense
10/24/11 Benefits – Allowable Expense – Sections 3107(1)(a) and 3151-3159
A. Review No Fault Manual (pp. 37-42; 137-140)
VI. Benefits – Wage Loss, Replacement Services and Survivor Loss
10/24/11 Benefits – Wage Loss and Service Reimbursement – Section 3107(1)(b) and (c); Temporarily Unemployed – Section 3107a
A. Review No Fault Manual (pp. 42-47)
Benefits – Survivor Loss – Section 3108; Distribution of Benefits – Sections 3110(1)(2)(3) and 3112
B. Review No Fault Manual (pp. 49-52; 63-65; 69-70)
VII. Computation of Benefits – Limitations, Deductibles and Coordination
10/31/11 Computation of Benefits – Non-Duplication – Section 3115(3); Governmental Setoffs – Section 3109(1); Coordination of Benefits – Section 3109a
A. Review No Fault Manual (pp. 53-61)
VIII. Statute of Limitations and Penalties
11/7/11- Time Limitations – Section 3145(1)(2) and 3141
A. Review No Fault Manual (pp. 115, 121-127)
Penalties for Late Payment – Interest and Attorney Fees – Sections 3142(1)(2)(3) and 3148(1)(2)
B. Review No Fault Manual (pp. 109-112; 115-119; 129-135)
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UPCOMING SEMINARS
The Troy Breakfast Seminar will be held on Thursday October 27, 2011 at the Troy Marriott.
Please watch Law Fax for further information and Agenda.
The Windy City Seminar will be held on Thursday November 10, 2011 at the Chicago Marriott Suites O’Hare in Rosemont, Illinois. Please watch Law Fax for further information and Agenda.