Author(s): James L. Borin, Simeon R. Orlowski

COURT OF APPEALS ADOPTS TEST FOR MEDICAL CAUSATION

In a published opinion, Scott v State Farm, ___ Mich App ___ (April 15, 2008), the Court of Appeals has established an extremely liberal test for medical causation under the No Fault Act. In this case, the plaintiff, Kristen Krohn, was seriously injured in a motor vehicle accident in 1981. Many years later, in 1991, she was diagnosed with high cholesterol. She responded to an exercise program, nutritional limitations and Zocor medication.

Six years later, her treating physician transmitted a narrative report to State Farm suggesting a relationship between Kristen’s traumatic brain injury and her hyperlipidemia:

“In September 1997, Dr. Jacobsen wrote a letter to the State Farm adjuster, confirming an earlier discussion, and opining that Krohn’s hyperlipidemia was directly related to the sequelae from her auto accident; that since the accident Krohn was not able to do as much exercise as she should, but mainly she had impairment of self-control from her head injury, which made it hard for her to eat a reasonable diet. Dr. Jacobsen added that she would make another attempt to help Krohn with her diet by sending her to a nutritionist. This was done.”

Another six years passed, at which point in time a second treating physician offered a similar opinion:

“In May 2003, Dr. Michael Andary, a treater, did a chart note from a physical examination of Krohn. Krohn was having significant problems with her right leg. When she sat for long periods of time in the car and started to stand, she got significant pain. The pain was in the posterior part of the knee and the upper part of the calf. Krohn told Andary that the pain came on while she was riding her bike during an exercise program. Krohn was afraid that doing more exercise would make the problem worse. Krohn reported pain down into her foot, severe enough that she had been using a wheelchair around the house. Andary reported that Krohn had a very ataxic gait and used a cane. Regarding the right knee pain, Dr. Andary identified numerous possible contributing causes, including the accident. Regarding Krohn’s cholesterol problem, Dr. Andary opined that it was causally related to the auto accident:

It is my view that this hypercholesterolemia is at least partially related to her traumatic brain injury. Her inability to exercise influences her weight. Additionally her cognitive problems influence her eating behaviors. Her treatment for hypercholesterolemia in my view should be covered by her Auto No Fault insurance.”

In 2004, State Farm denied payment for two cholesterol drugs, Zetia and Vytorin, alleging that same were unrelated to injuries sustained in 1981.

The trial court (a probate judge) denied State Farm’s motion for summary disposition. A circuit court judge, sitting as an appeal court, affirmed. The Court of Appeals granted leave to appeal and, in a unanimous opinion, affirmed both lower courts.

The court phrased the question thusly:

“This case requires us to consider whether the cholesterol problem is one ‘arising out of’ the injuries sustained in the 1981 auto accident. MCL 500.3105(1). Statutory interpretation is a question of law, reviewed de novo. City of Mt Pleasant v State Tax Comm, 477 Mich 50, 53; 729 NW2d 833 (2007).”

In responding to this query, the court reviewed several appellate decisions and, ultimately, reached this conclusion:

“Here, plaintiffs responded to defendant’s motion by producing evidence of a causal connection between the accident and the hyperlipidemia, and we consider that evidence in a light most favorable to plaintiffs. McManamon v Redford Charter Twp, 273 Mich App 131, 134; 730 NW2d 757 (2006). Plaintiffs presented testimony indicating that the accident caused brain and

skeletal injuries, which make it difficult for plaintiff to exercise, and which contribute to poor judgment regarding diet. Plaintiffs also presented evidence that this difficulty in exercising , and poor diet, contribute to hyperlipidemia. Plaintiff is not required to establish direct or proximate causation. Although a genetic predisposition to hyperlipidemia is apparently present, there is no authority that, for purposes of personal protection insurance, a plaintiff must exclude other possible causes (as there is, for instance, when proximate causation is at issue, in a traditional tort context). Plaintiff has presented evidence sufficient to raise a genuine issue of material fact. The chain of causation, under plaintiffs’ theory, though somewhat attenuated, is not so long that its links are completely unable to support the burden of proof. There is testimony indicating that there is no objective test that can distinguish between a case of hyperlipidemia caused genetically, and one caused by independent factors. Thus, the trier of fact must decide whether the high cholesterol problem is one ‘arising out of’ the accident.”

The problem with this “test” is that it is totally without parameters or constraints. It simply deposits the question of medical causation with the finder of fact, typically a jury, if there is medical testimony supporting such causation. The jury, in turn, would apparently be charged to find for the plaintiff if there was “any causal relationship” between the incurred expense and the original motor vehicle accident. In doing so, this panel has reduced medical causation to little more than “but for” analysis.

This case has very significant, and potentially serious, implications for insurance affordability. Since allowable expense benefits are lifelong, it is not inconceivable that every human malady, including heart conditions, hypertension, joint replacements, diabetes, Alzheimer’s disease and everything else imaginable could be “causally related” to a distant motor vehicle accident.

Fortunately, State Farm has decided to seek further review by the Michigan Supreme Court. This is a case which deserves careful consideration by that court. We will keep you posted.