Kevin Krohn v. Home-Owners Ins Co

Krohn v Home-Owners KROHN v HOME-OWNERS INSURANCE COMPANY (Calendar 5). Argued April July Docket No. 140945. No. Decided 29, 2011. brought Kevin Krohn an action in the Lenawee Circuit Court under act, seq., seeking personal protection the no-fault MCL 500.3101et insurer, insurance benefits from his no-fault Home-Owners Insur- Company, surgical experimental procedure ance costs of an Portugal motorcycle he underwent in after a accident left him paraplegic. procedure removing containing The involved tissue transplanting stem cells from his sinus cavities and it into the injured spine. area of his Defendant moved for a directed verdict ground procedure reasonably necessary on the that the was not plaintiffs recovery, or rehabilitation under MCL 500.3107(l)(a). court, Timothy Pickard, J., P denied the motion, ruling reasonably that whether the neces- sary jury was a of fact. A rendered a verdict in favor of plaintiff, appealed. Appeals, Cavanagh and defendant The Court of PJ., dissenting), and K. F. JJ. reversed in an (Fort Kelly, Hood, (Docket unpublished opinion per January 26, curiam issued 283862), holding plaintiffs present expert No. failure to testimony demonstrating gained general had acceptance community required in the medical a directed verdict Supreme granted plaintiffs application for defendant. The Court appeal. for leave to 488 Mich 876 opinion by joined by In an Young Justice Chief Justice Zahra, Supreme and Justices Markman Court Mary Beth Kelly, held: plaintiff seeking A reimbursement from a no-fault insurance experimental carrier for medical treatment that is and not generally accepted community present within the medical must objective and verifiable medical evidence that the treatment care, recovery, efficaciousin his or her or rehabilitation. 500.3107(l)(a) provides personal protection 1. MCL insur- payable charges ance benefits are for all reasonable incurred for reasonably necessary products, services, and accommodations for injured person’s care, recovery, an or rehabilitation. The statute “reasonably”; however, dictionary does not define the term definí- 490 Mich 145 personal reflect the absence of

tions of the word “reasonable” sentiment, subjective prejudice, and bias that are associated with a view, perceptions, point which is based on an individual’s one feelings, externally phe- rather than the or intentions verifiable objective viewpoint. Accordingly, nomena associated with what 500.3107(l)(a) reasonably necessary purposes of MCL must is objective perspective. under an The fact that the be determined 143, by rejected provision 1993 PA one of which voters referendum coverage, experimental excluded treatment from no-fault was interpreting existing the statute. irrelevant to seeking experimen- An is an 2. insured who reimbursement for surgical procedure present surgery tal must evidence that the is efficacious, is, may recovery it that result in or rehabili- tation. Because this determination the of medical involves exercise judgment, efficacy objective must be based on and verifiable through expert testimony. medical evidence that is established However, require prove MCL 500.3107 does not an insured to surgical experimental procedure gained general acceptance has community may medical the before trier of fact consider reasonably necessary. objective whether it was If there is and experimental surgical procedure verifiable evidence that an is efficacious, procedure the fact-finder can determine whether factors, reasonably necessary considering was relevant such as severity chronicity condition, and of the the outcome of treatment, previous the likelihood that alternative treatments efficacious, personal physician’s would be recommendation in conjunction patient’s preference, with the and and the short-term long-term risks and Under MRE benefits. the trial court must any expert testimony ensure that or scientific evidence is reliable. Specifically, expert testimony the trial court must ensure that data, product prin- on facts or based sufficient is the of reliable methods, ciples applied principles and and that the witness and reliably methods to the facts of the case. present experi- 3. Plaintiff failed to evidence establish that the surgical procedure presented objectively mental at issue him with an care, recovery, chance that it verifiable would be efficacious his particular, plaintiff’s expert In rehabilitation. one of witnesses did not endorse, recommend, prescribe procedure plaintiff, testified regarded necessary, that was not and admitted that the outcome experimental. was uncertain because the was new and present expert support theory other failed to medical evidence to his Therefore, procedure’s plaintiff. benefit was expense 500.3107(l)(a), not an allowable under MCL and defendant judgment was entitled as a matter of law. v Home-Owners Krohn Affirmed. joined by (except Cavanagh Justice for foot- Justice Hathaway, 20) dissenting, have note and Justice would Marilyn Kelly, jury’s finding procedure performed plaintiff

upheld the that the on reasonably necessary plaintiff and held that would have proce- to reimbursement of the costs associated with the entitled by requiring objective dure. She stated that and verifiable medical efficacy, majority’s holding language added to the evidence of rejected by no-fault act that the voters referendum and that the erroneously majority’s holding removed the determination of reasonably necessary jury expenses which are from the stringent proving standard for a treatment is created more 500.3107(l)(a) reasonably necessary requires. than MCL — — — Insurance No-Fault Personal Protection Insurance Benefits Ex- — perimental Treatments Evidence. plaintiff seeking A reimbursement from a no-fault insurance carrier experimental generally for a medical treatment that is and not accepted community present within medical must through expert testimony and verifiable medical evidence care, recovery,

treatment is efficacious his or her or rehabilita- tion; provided if the has trial this evidence court reliable, may has ensured that it is the finder of fact determine reasonably necessary by considering whether the treatment was condition, severity chronicity such factors as the of the any previous treatment, outcome of the likelihood that alternative efficacious, personal physician’s treatments would be recommen- conjunction patient’s preference, dation in with the and the long-term short-term and risks and benefits of treatment (MCL 702). 500.3107[1];MRE Pollard, Logeman, (by & Craig P.C. J. Pol- Iafrate lard), plaintiff. for

Conlin, Philbrick, & McKenney (by P.C. Allen J. Philbrick), for defendant.

Amici Curiae:

Dykema (by Gossett PLLC Jill M. Wheaton and Erhardt) Joseph Michigan Catastrophic for Claims Association. 490 Mich 145 Opinion Court Firm, PLLC

Speaker (by Speaker), Law Liisa R. Sinas Dramis Brake & Boughton McIntyre (by PC Sinas) T. George Protecting for Coalition Auto No-Fault. Brenner) (by

Clark Hill PLC E. the Michi- James gan Defense Trial Counsel. Krohn, Plaintiff, J. Kevin who an suffered

ZAHRA, severe fracture him extremely spinal paraplegic, that left brought act, this suit under the no-fault MCL 500.3101 et seq. Plaintiff sought personal protection insurance ben defendant, efits from Home-Owners Insurance Company, to cover costs incurred for a surgical procedure performed in Portugal. It is undisputed surgical procedure that this experimental generally was and not a accepted treatment plaintiffs injury. The dispositive question presented in this case is this experimental procedure whether was a reasonably necessary plaintiffs care, service for recovery, 500.3107(1)(a). or rehabilitation under MCL We conclude if a medical treatment is experimental and not generally the medical accepted community, within seeking insured must, reimbursement for this treatment minimum, at a present objective and verifiable medical evidence establishing 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. An subjective insured’s belief that medical efficacious, treatment reasonable, and necessary is not enough to create a question of fact. Viewed in the light most plaintiff, favorable to and verifiable medical evidence at trial presented failed to establish that the experimental surgical at issue way in plaintiffs recovery, efficacious or rehabilita tion. Plaintiffs expert merely opined plain witnesses tiffs decision to undertake the experimental surgical Krohn v Home-Owners Opinion of the Court an “understandable” procedure personal was decision plaintiff only medically unproven “possibil that offered Therefore, ity,” hope, for an efficacious result. not an procedure expense was allowable under MCL 500.3107(1)(a). We affirm the judgment of the Court of Appeals.1

I. FACTS AND PROCEEDINGS On 2001, plaintiff December struck head-on large van while his riding motorcycle. Plaintiff suffered spinal severe fracture that left him paraplegic, without sensation or function below the (“injury mid-chest area site”). Consequently, plaintiff feet, was unable to touch his any part move of his lower body, or determine when to reheve himself. Plaintiff underwent physical intensive did therapy regain any but injury sensation below the site and was the program. released from investigating

While treatment options, plaintiff dis- procedure covered a known olfactory ensheathing glial cell transplantation, an experimental surgery per- formed in Portugal. procedure involves transplant- ing from cavities, tissue behind the patient’s sinus cells, which contains stem injury to the site. The theory behind procedure that, applied once to the injury site, transplanted stem develop cells could into spinal cord nerves. The is not approved by (FDA) the United Drug States Food and Administration and therefore cannot be legally performed in the United addition, States. In there is existing insufficient re- trials, search to allow for clinical including controlled studies, peer review, and publication for FDA evalua- far, tion. Thus no one has FDA applied approval purpose. 1 Although judgment Appeals, we affirm the of the Court of we do so for Appeals. reasons different from those stated Court 490 Mich 145 op Opinion the Court

In March plaintiff visited the Rehabilitation (RIM) Michigan Institute of and discussed the proce- dure Dr. Hinderer. Dr. specializes with Steven Hinderer physical in medicine and rehabilitation and is the medical director of Spinal Injury the Center for Cord (CSCIRP). Recovery Program Dr. Hinderer to explained that he could not or in plaintiff any way endorse procedure highly recommend the because it was experi- mental, yet approved by FDA, had not been could legally performed anywhere States, not be the United efficacy.2 lacked medical evidence to establish its party disputes yet Neither that no one had for applied FDA approval procedure of the and the purpose, existing research was insufficient to clinical allow trials to Dr. begin. Hinderer also informed plaintiff that the part was not of standard clinical care and was likely to be covered consulting insurance. After Hinderer, Dr. plaintiff patient with met with a had who undergone the Plaintiff procedure. claimed that this individual able to was stand on device similar to a treadmill and walk with braces after the procedure.3 erroneously The dissent claims we conclude that Dr. Hinderer’s testimony efficacy procedure. cast on the doubt of the Dr. Hinderer’s testimony, however, merely suggested procedure required scien clearly tific highly research. The literature from the CSCIRP outlined the experimental procedure. According nature of this to defendant’s brief in Court, very “[t]here the literature stated that has been little efficacy long-term scientific data collection of the outcome of these procedures.” encouraged pursue The literature also those “who choose to surgical procedures” these alternative to enroll in the RIM’s clinical study “begin knowledge” research to scientific and “evaluate the effec procedures.” provided plaintiff tiveness of these This literature was to undergo procedure, before he decided to and Dr. Hinderer’s trial testimony was consistent with the CSCIRP literature. history developed The medical of this individual was not at trial and establishing there was no medical evidence the record any improvement may experi caused this individual have enced. Krohn v Home-Owners Opinion of the Court After seeking advice family members, from decided undergo the procedure in Portugal. Plain- primary tiffs health insurer denied coverage. Plaintiff then sought coverage defendant, from a no-fault auto provider. insurance Defendant’s claims specialist told plaintiff that defendant pay would testing deter- mine whether plaintiff medically qualified for the pro- cedure, but would not pay for the procedure itself because it experimental, non-FDA approved, and illegal perform the United States.

Plaintiff traveled to Portugal and underwent the procedure on later, November 2005. Ten days plain- tiff returned to the United States and what began he described as a grueling physical therapy program at the RIM, entailing four-hour therapy sessions three times week. paid Defendant for all postsurgical the physical therapy plaintiff treatment received. Plaintiff filed suit against defendant to recover.the expenses he incurred traveling to and from Portugal and undergoing the trial, At surgery. plaintiff testified that he noticed improvements immediately after procedure. the Specifi- cally, plaintiff testified that he could sometimes move legs, his backward, crawl forward and and control bowel movements, and bladder in resulting fewer urinary tract infections.

Dr. Hinderer testified had experienced “some small amount of voluntary motor function” after the procedure. Dr. Hinderer also testified that it was not possible to conclude that these minor improvements were the result of procedure. Dr. Hinderer acknowl- edged that the intense physical in therapy program which plaintiff engaged postprocedure could alone have accounted plaintiffs improvements.4 Dr. Hinderer 4 Dr. patients Hinderer was asked whether he had seen make similar improvements very aggressive physical therapy after without this sur- [July- Mich 145 Opinion op the Court nature of the experimental highly about the

testified undergo to decision plaintiffs He described procedure. acknowledged choice” and as a procedure “personal necessary to was not considered procedure that this injuries. spinal and care of cord treatment at Lima, neuropathologist neurologist Dr. Carl not licensed Portugal who is hospital a public surgical States, plaintiffs a member of United was According team, perform procedure. but did not Lima, transplanting data showed that experimental Dr. cells, site tissue, injury contains stem nasal which He testified recovery of neurons. provides functional guinea earlier on begun years research had that this at trial that the presented There no evidence pigs. guinea pigs. has been efficacious procedure could be testimony only procedure established guinea pigs’ on without performed guinea pigs forming tumors. developing infections conducting human Dr. Lima testified that he started government-operated in the procedure trials of the works, he which sanctions the hospital where testimony research No was offered purposes. suggest hospital had sanctioned that, of its efficaciousness. Dr. Lima testified because undergone procedure; have the patients since however, testimony regarding Dr. Lima did not offer their severity individual the or location of patients, their injuries, following procedures, the outcomes in Dr. Lima a prognoses. published paper their patients the outcome for seven who that summarized All en- undergone procedure. patients had the seven following procedure, the but gaged physical therapy in bladder improvements of the seven showed only two virtually partici- “improvements gery. responded all He that he sees therapy], surgery surgery.” pants undergo physical no [who intensive v Krohn Home-Owners Opinion of the Court and bowel there been con- Although control. had no regarding trolled clinical studies Dr. procedure, this testified, Lima “I say would of the majority patients have kind improvement.”5 some of

Dr. Lima found cord one plaintiffs spinal injury to be of the injuries most severe that he had Dr. ever treated. very Lima he testified that was surprised “quite unexpected” plaintiffs results of Lima procedure. Dr. acknowledged fully that would never recover from a injury. Nonetheless, such severe Dr. Lima testi- fied that the procedure necessary was allow plaintiff to a at recovery. chance some any degree He added that of recovery requires physical therapy. Although Dr. Lima procedure conceded that was he experimental, opined reasonably that necessary was because person with a cord spinal chronic has injury no other option. available The lack FDA did not approval change Dr. opinion. Lima’s testimony providing The dissent cites Dr. Lima’s that “of the 110

patients undergone program, majority who had the treatment in his patients improvement.” However, showed at Post 180-181. the lower only court record that Dr. reflects Lima testified as follows: Overall, you you Q. would describe —how would describe the

degree surgeries patients? of success of the on Well, maybe right person say that, A. why I’m not and that’s publish patient, say we want the whole results of the Ibut would patients improvement. have kind of some testimony hardly This patients “majority demonstrates that showed a_ improvement.” testimony only guess better reflects that Dr. Lima could experimental procedure surgical patients. efficacious some significantly, testimony More assumption this reflects Dr. Lima’s improvement may experimental been have noted was the of the result surgical procedure physical therapy and not alone. As Dr. both Hinderer and stated, plaintiff concedes, Dr. regarding Lima and as there is no evidence any improvement extent to which after this can be attributed to procedure alone, physical alone, therapy or a combination thereof. To extent, quoted testimony objectivity reflects of the absence required support legal conclusion that the is efficacious.

154 Mich 145 490 Opinion of the Court verdict, arguing for a directed moved Defendant is not law, experimental surgery a matter of that as The act. under the no-fault “reasonably necessary” motion, ruling denied defendant’s trial court necessary” “reasonably was procedure whether of The rendered a verdict jury fact. question was was concluding procedure favor plaintiff, of entered, Judgment was award- reasonably necessary. $51,412.85 expenses, plus in allowable ing plaintiff costs. sanctions, and taxable interest, case-evaluation Ap- reversed. Court Appeals The Court issue dispositive that because the peals observed plaintiff medical was required judgment, a review of expert testimony.6 Citing SPECT required present Co,7 Court Appeals Inc v Ins Imaging, Allstate to demonstrate plaintiff required concluded that was acceptance gained general had Because lacked such community.8 medical a directed the Court of concluded that proof, Appeals required.9 of defendant The dissent verdict favor was raising for sua the issue sponte criticized the admissibility of scientific evidence because the issue appellate was review.10The dissent preserved also whether the concluded that “reasonably necessary” properly was submitted jury.11 Co, unpublished opinion of the Court of Krohn v Home-Owners Ins (Docket 283862), January 26, Appeals, p 3. issued No. Co, 578; Imaging, Ins App SPECT Inc v Allstate 246 Mich NW2d 461 8 Id. at 3-4.

9 Id. at 5-6. (Fort Hood, EJ., dissenting). Id. at 5 11 Id. at 8. v Ins Krohn Home-Owners Co Opinion of the Court applied Plaintiff for leave to appeal this Court. We granted consider, application among issues, other the experimental surgical whether in Portugal underwent expense was an allowable under 500.3107(1)(a) MCL of the no-fault act.12

II. STANDARD of review We review de a novo trial court’s decision to direct a so, doing

verdict.13 In we “review the and all evidence legitimate light inferences in the most favorable to the nonmoving party.”14 evidence, if Only when viewed light, in this fails to establish claim as a of matter law should a motion for directed be granted.15 verdict

Issues statutory of interpretation are of questions law that this Court de reviews novo.16

III. ANALYSIS A. BACKGROUND The Michigan requires no-fault act owners registrants of carry automobiles personal protection insurance cover an insured’s medical care arising injuries from sustained in an automobile accident.17 12 (2010). Co, Krohn v Home-Owners Ins Mich 488 876 13 Mich, v 131; Sniecinski Blue Cross & Blue Shield 469 Mich (2003). NW 2d 666 186 14 omitted). (quotation Id. marks and citations 15Id. Co, 521, 525-526; State v Farm Mut Auto Ins 472 Mich Griffith NW2d 895 500.3105(1). 500.3101(1); MCL MCL We note that while the no-fault coverage act mandates minimum insurance to be obtained an registrant automobile, owner of an bar does not an insured from obtaining coverage insurance preliminary excess of that amount. As a matter, registrants we note that all owners automobiles Mich Opinion the Court determine whether requires us to case

This by plain undergone surgical procedure experimental under compensable expense constituted tiff of MCL requirements insurance protection personal 500.3107(1) 500.3107(1)(a). in perti provides MCL part: nent payable for protection are insurance benefits

[P]ersonal following: (a) expenses consisting all reasonable Allowable reasonably necessary products, ser- charges incurred for injured person’s accommodations vices and [Emphasis added.] recovery, or rehabilitation. INTERPRETATION B. PRINCIPLES OF STATUTORY statutory interpretation to goal of primary reasonably may intent that be legislative “ascertain “The first step the statutory language.”18 inferred from review language determination is to in that defined, every word statutorily itself.”19Unless statute plain be its and of a statute should accorded phrase context in taking into account the ordinary meaning,20 dictionary may the words are used.21We consult which and give ordinary their common definitions to words ordinary and given When their common meaning.22 greater purchase provide Michigan are free to insurance contracts required coverage under act. than the minimum the no-fault 18 Twp, Griffith, 526, citing Sotelo v 470 Mich Grant 472 Mich at (2004). 100; 381 680 NW2d 19 396, 411; Complaint, Telecom. Mich 596 NW2d 164 In re MCI 460 Bd, 547, 567; Speaker Admin (1999), citing House v State 441 Mich 495 (1993). 539 NW2d 20 732, 748; DaimlerChrysler Corp, 8.3a; Mich Robertson v 465 MCL (2002). 567 641 NW2d 21 Babel, Family 136,175; Baum Trust v 793 NW2d 633 488 Mich (2010). Bhan, 572, 578; v Halloran Mich 683 NW2d v Krohn Home-Owners Co Ins Opinion op the Court meaning,23 “[t]he words of a statute provide ‘the most ”24 reliable evidence of its ..’ intent..

C. PRECEDENT This is not the first time this Court has been called 500.3107(1)(a). upon interpret MCL In Nasser v Auto Ass’n,25 Club Ins this Court held that under MCL 500.3107(1)(a), “an insurer is not for any liable medical expense ... if the product service itself not reason ably necessary.”26 This Court further observed that “[t]he and unambiguous plain language [MCL 500.3107] makes both necessity reasonableness explicit necessary recovery, elements of claimant’s and thus renders their absence a defense to the insur er’s This liability.”27 rejected Court the notion that public-policy require concerns would the payment of expenses for medical care shown to be reasonable and necessary to the care of an insured. Justice BOYLE, writing for majority, observed that policy “[w]hile considerations may indeed some cause reluctance on the part of courts allow insureds ‘stuck’ with unnecessary expenses” that they incurred, “that deter mination was made the Legislature when it drafted [MCL 500.3107] and [personal restricted protection insurance] benefits under a rule reasonableness.”28 Finally, recognized this Court that while the Club, Country Veenstra v Washtenaw 155, 160; 466 Mich 645 NW2d (2002), citing 643 MCL 8.3a. City Charlevoix, Klooster v 289, 296; 488 Mich 795 NW2d 578 of Turkette, (2011), quoting 576, 593; United States v 2524; 452 US S101 Ct (1981). L 69 Ed 2d 246 Ass’n, v Nasser Auto Club Ins 33; 435 Mich 457 NW2d 637 Id. at 49 (emphasis original). 27 Id.

28 Id. at 55. Mich Opinion of Court provision generally necessity under

reasonable for the cases may possible in some be jury, for a “it one reasonableness to decide the court a necessity particular expenses as matter ,”29 . . law . language of MCL made clear

While Nasser expenses an insured to recover only permits 500.3107 necessary recovery, to the are reasonable and that little insured, provided Nasser of the or rehabilitation determine is a what properly on how guidance a determi necessary or when such reasonably expense of law. may provide be made as matter To nation lines, that no-fault these we observe along guidance all coverage for treatments. Obvi require act does not apricot pit therapy, coning such as ously, treatments (ear therapy psy candling), homeopathy, magnet Even if admin patently chic are unreasonable. surgery these so-called providers, licensed health-care istered only a scientific basis to conclude treatments not lack accepted by the medical commu they generally are simply they no basis to conclude that nity, but there is hand, we presume, at all efficacious. On other are rebuttal, generally accepted by services subject to of a community for treatment or care the medical reasonably diagnosed injury necessary are specific 500.3107(1)(a). pre clear is the case under MCL Less here, undergone in which an insured has sented accepted by that is not surgical generally experi maintains that community. medical Defendant nature, cannot, mental their as matter procedures, law, reasonably under the no-fault act. necessary experi reject defendant’s and conclude position We necessarily barred from mental treatments are the no-fault act. The ultimate being under compensable 29Id. Ins Krohn v Home-Owners Co Opinion of the Court surgical whether the at here is

question issue act expense covered under the no-fault does not turn Rather, for experimental. on its status as like all claims on expenses, allowable turns whether reasonably necessary plaintiffs or recovery, rehabilitation. 500.3107(1)(a)

D. MCL BE MUST ASSESSED USING AN OBJECTIVE STANDARD In meaning order to to this give statutory provision, by examining perspective we start from which reasonable necessity is determined. Stated more pre- cisely, Legislature provided when the that allowable expenses consist “all reasonable incurred for charges reasonably necessary products, services and accommo- for an injured dations person’s care, or recovery, reha- bilitation,” did it intend for be necessity reasonable determined under a subjective or objective standard?

The term commonly “reasonable” refers to that “agreeable which is reason; or accord with logical,” exceeding “not prescribed reason; limit not excessive[.]”30 The term “reasonable” has also been “fair, defined mean proper, or under moderate circumstances”31 appropriate “[f]it and to the end in view.”32 These definitions an evidence absence of the personal sentiment, prejudice, and bias associated with subjective view, point of which is “based on an individual’s perceptions, feelings, intentions,” rather than the “externally phenomena” verifiable associated with an viewpoint.33 Accordingly, we conclude that reasonableness merely is based on the subjec-

30 Random, College Dictionary House Webster’s (7th ed). Dictionary Black’s Law (6th ed). Dictionary Black’s Law (7th ed) Dictionary (defining “subjective”). Black’s Law 490 MICH Opinion of the Court an necessary injured service perception

tive Rather, care, recovery, or rehabilitation. person’s objec- must determined under “reasonably” term perspective. tive with entirely consistent

This conclusion In 500.3107. MCL precedent interpreting Court’s in a minor accident. was involved Nasser, plaintiff chest, shoulder, “head, neck, pain of his Complaining back, as well blurred vision and lower upper and both nausea, medical treatment from initially sought he internist, then him to hospital.34 who admitted months, days following spent three he Over battery of medical tests.35 and underwent a hospital pay for the no-fault insurer refused plaintiffs The and the sued plaintiffs hospitalization, plaintiff under the no-fault act.36 expenses allowable recover on granted plaintiff summary disposition trial court affirmed, of liability.37 Appeals of The Court the issue allowing plain- justify considerations to citing policy subjective hospital beliefs that his rely tiff to on his when he ac- “reasonably necessary” were expenses so, In doing Appeals treatment.38 Court cepted reasonableness agreed plaintiff “[t]he also with the be used as a defense expenses of medical cannot re- in a case.”39 This Court liability no-fault accident jected claims, clearly stating s both the challenge could the reasonableness defendant insurer 34Nasser, 435 38. Mich at 35Id.

36 Id. at 38-39.

37Id. at 40-41. 182, 186; Ass’n, App Mich 425 NW2d 762 v Club Ins Nasser Auto

39Id. Krohn v Ins Home-Owners Co Opinion of the Court the plaintiffs expenses and impliedly rejecting the plaintiffs on subjective reliance his belief of reasonable- ness.40

This Court has held also when interpreting insur- ance contracts the use of term “reasonably” requires the application an objective standard unless particular used reference to a person’s point of view or expectation under certain circumstances.41 In the companion cases of Allstate Ins Co v Freeman and Prop Metro & Ins Liability DiCicco,42 Co v this Court distinguished between language identifying objective subjective standards in exclusionary insurance Freeman, clauses. In this Court unanimously held that phrase “reasonably expected” unambiguously directed the of an use of expecta- standard DiCicco, tion.43 In this Court applied subjective standard to an policy insurance that excluded “bodily injury damage property which is either expected intended from the standpoint the in- sured.”44

40 Nasser, 435 Mich at 48-50. 41 statutorily Inasmuch as the no-fault act mandated insurance coverage, appropriate guidance we find it seek to from insurance contract regard in meaning caselaw the “reasonably.” to the word 42 Freeman, (1989). Ins 672; Allstate Co v 656, Mich 432 443 734 NW2d 43 J.); Id. at 688 (opinion by (opinion by J.); id. at 709 C. id. Riley, Boyle, J.). (opinion by at 721 Archer, 44 Id. at 672 (opinion by J.); id. at 710 (opinion by J.); C. id.. Riley, Boyle, J.). (opinion by Diehl, 678, In Fire Ins v at 721 Exch 450 Mich Archer, 684; (1996), 545 NW2d policy 602 this Court addressed an insurance “ provision excluding event, including ‘[a] repeated sudden continuous or exposure conditions, bodily resulting injury property to the same in or ” damage expected neither nor intended the insured.’ The Court noted DiCicco, provisions that, in both Freeman and the then stated distinction, [e]xplaining [in] the Boyle Justice noted the policy required objective because, [Freeman] an standard of the phrases exclusionary policy, exclusionary

two the in the first Mich 145 490 162 Opinion the Court (After Co v McCarn recently, in Allstate Ins More ex- policy an insurance Remand), we addressed “may reasonably damage that coverage cluded or an intentional from insured’s expected to result” used phrase the contract the criminal acts.45 Because of this Court expected,” six members “reasonably an application the required the contract agreed that objective standard.46 “reasonably” expected, policy phrase applied injury and the exclusionary phrase phrase counterpoised the the second first Therefore, injury applied “in intended.” the if the fact application phrase require must of an standard first “reasonably” meaning the second exclusion- the loses its and word hand, policy ary phrase the the exclusion is redundant. On other “reasonably,” policy word [DiCicco] did not contain the from the standpoint employed phrase of the but instead “from subjective application language required This stan- insured.” (citations omitted).] [Id. dard. at 685 policy Court that the was “somewhere The Diehl stated DiCicco,” noting policies and two at issue Freeman between the that, ‘reasonably,’ “[although policy employ term does not phrase standpoint of the is also absent.” Id. ‘from insured’ policy “[t]he

Diehl held that manner which the Court nonetheless ‘by employs phrase suggests emphasis insured’ of the expected injury” policy insured or intended the is on whether the subjective support, analysis. applied thus Id. further the Diehl In determining subjective approach Court that a reasonableness noted appropriate policy expressly if the directed consideration of 685-686, subjective quoting expectations. Id. at Auto-Owners insured’s (1992) 560, 567-568; Churchman, Mich 489 NW2d 431 v injury “expected (holding policy that a intended exclusion standard) subjective unambiguous requires person” is insured omitted). (quotation marks Remand), 283, 289; (After v 471 Mich Ins Co McCarn Allstate NW2d 656 J., dissenting); id. at 302 at J. Id. (Young, (WEAVER, only. dissenting). concurred in the result We note a Justice CAVANAGH (On Remand), decision, Appeals Ins Keillor Court of Allstate Co v 39-40, objective (1993), App an standard Mich in which NW2d “ ‘may reasonably applied a exclusion for harm that to contractual Krohn v Home-Owners Opinion of the Court statutory at provision issue in this case uses term and there “reasonably,” statutory is no language suggesting that “reasonably” should be determined aon subjective basis. Most objective indicative that an stan- applies dard is the absence of language providing any particular point view, such as “from the stand- of the point “by Thus, insured” or an insured person.” although “reasonably necessary” is a broadly worded we conclude phrase, that this must be phrase assessed objective an using standard.47 E. AN EXPERIMENTAL SURGICAL PROCEDURE CANNOT BE REASONABLYNECESSARY IF IT IS NOT EFFICACIOUS Having determined that the term “reasonably neces sary” must be assessed from an objective perspective, we next consider what reasonably is that must be 500.3107(1)(a): necessary under MCL “products, ser vices and accommodations” that are provided “for an injured person’s care, recovery, or rehabilitation.”48 (1) Thus, service, product, or accommodation must be (2) objectively reasonable and necessary for an in care, sured’s recovery, If, or rehabilitation.49 as in this case, the service under consideration is an experimental surgical procedure, the insured must present evidence surgery may result or recovery, reha bilitation. In other words, there must be evidence that surgery Further, efficacious. because surgery expected person to result from the intentional.. . an acts of insured ” person.’ which is in fact intended an insured approval Appeals’ We note with the Court of conclusion that evidence condition, plaintiffs the effects of a medical treatment on a whether positive negative particular case, type post is the hoc evidence making is inconsistent with determination of whether “reasonably Krohn, necessary.” unpub medical treatment was op at 4 n 2. 48 MCL 500.3107.

49 Nasser, 435 Mich at 50. 490 MICH145 Opinion of the Court effi judgment,50 of medical

involves the exercise objective on must be based cacy determination Experimental surgical pro medical evidence. verifiable medical evi objective and verifiable lacking cedures necessary” “reasonably cannot be efficacy dence of their in shown to effect the because it cannot be simply care, interpret or rehabilitation. To recovery, sured’s 500.3107(1)(a) reimbursement for allowing MCL as injured treatments “for an experimental nonefficacious care, rehabilitation” would be to recovery, or person’s of this “reasonably necessary” out phrase read the provision.51 efficacy in the the minimum threshold

Requiring consis- surgical procedures context of experimental regarding tent with our nonmedical allow- precedent rejected In for expenses. Griffith, example, able we “obligated pay for proposition that insurers were be injured person that an would otherwise expenses setting long they in an as are provided institutional Rather, care.”52 remotely person’s general related to the coverage that that allowable “requires we concluded causally person’s injury.”53 be connected to a expenses Ctr, Inc, Bryant Nursing 411; Oakpointe v Villa 471 Mich See (2004). 423-424; 684 NW2d 51 Indeed, point argument plaintiffs counsel conceded this at oral when acknowledging placebo that treatment could not be considered with “reasonably necessary” placebo pharma no-fault act. A is “a under the cologically as a inactive substance or a sham administered efficacy drug or course of action.” Random testing control of a College Dictionary may placebo House Webster’s cause a While subjective “lessening (defining “placebo see id. symptoms,” effect of decidedly effect”), placebo without the administration efficacy. placebo, as the here that lack Like a treatments such they “reasonably efficacy provide concluding that were can no basis for care, recovery, necessary” injured person’s for an or rehabilitation. 52 Griffith, 472 Mich at 539.

53 Id. at 530-531. Krohn v Home-Owners Opinion the Court specifically that “the statute limits emphasized We also that charges products or services compensation reasonably necessary injured person’s are ‘for rehabilitation[,]’. . recovery, suggesting] . to the Just injuries.”54 ‘care’ must be related insured’s expenses actually for food be required as Griffith injury, require related to a so also do we here person’s medical treatment ac- expenses experimental care, recovery, for an tually injured person’s minimum, requires, rehabilitation. This at a that ser- injured care, recovery, vices be in an person’s efficacious rehabilitation. If surgical is an insured experimental, necessity cannot establish its reasonable under MCL expert testimony 500.3107 unless indicates that surgery a reasonable chance that presents will be care, injured person’s recovery, efficacious rehabilitation. to the Contrary Appeals’ Court of hold case, ing an insured is not to required prove an experimental surgical procedure gained general ac ceptance in the medical community before its reason necessity able becomes a question for consideration 500.3107(1)(a) trier of fact.55MCL does require that medical gained treatment be shown to have gen eral acceptance Rather, within the medical community.

54 Id. at 534. Krohn, unpub op Appeals’ reliance on SPECT See at 4. The Court of Imaging case, misplaced. In that the Court addressed whether a particular imaging reasonably necessary form of brain was a service Imaging, SPECT App under MCL 500.3107. 246 Mich at 574. The Court evidentiary hearing remanded for the trial court to conduct an expert testimony relating determine whether and evidence to brain imaging were admissible under MRE 702. Id. at 578. The Court of Appeals require imaging equipment did not that brain be shown to have Rather, gained acceptance community. only expert in the medical testimony support imaging or evidence offered in of the brain and the gained acceptance inferences therefrom had to have in the medical Mich 145 Opinion the Court objective and verifiable medi- present

an insured must in an cal evidence that medical treatment is efficacious If injured recovery, or rehabilitation.56 person’s experi- there is and verifiable evidence that an efficacious, surgical procedure mental the finder of fact begin regard can to make an informed decision in reasonably necessary by the treatment was con- whether sidering case, whatever factors were relevant in that may severity which include but are not limited to the condition, chronicity any previous the outcomes of treatments, the likelihood that alternative treatments efficacious, would be a personal physician’s recommenda- tion in conjunction patient’s preference, with the and both long-term the short-term and risks and benefits.57 community imaging reasonably before brain SPECT would be considered necessary Imaging under MCL 500.3107. Id. at 578-579. SPECT ex pressly stated that testimony expert [i]f the court determines that the and evidence

relating satisfy imaging [brain] SPECT the standards of MRE general-acceptance requirement], [the 702 and and are therefore trial, ensuing determination, at admissible whether brain imaging reasonably necessary expense SPECT was a in the treat pursuant 500.3107(1)(a), ment of defendants’ insureds to MCL [Id. 579.] reserved for the trier of fact. at reject proposition proposed product, service, We that a or accommo- gained general acceptance compensable. dation must have medical to be 56 emphasize efficacy not, by itself, We that evidence of sufficient in every necessity instead, liability; case to establish reasonable or no-fault opinion efficacy our makes clear that is a minimum threshold standard that, by plaintiff, precludes judgment if demonstrated as a matter of law particular generally, efficacy on this issue. As with threshold standards through objective merely demonstrated and verifiable medical evidence is step proving liability considering unique the first to when facts and circumstances of each case. 57 Notably, parties’ attorneys regard at trial elicited evidence in to Accordingly, attorneys several of these factors. we believe of record are position propose establishing in the best factors that are most relevant to minimally “reasonably necessary.” whether a efficacious treatment is Krohn v Home-Owners Opinion of the Court Absent evidence to that the experimen- establish tal surgical procedure efficacious, is at least there would not exist material of fact about whether the medical reasonably treatment was necessary to the care or recovery rehabilitation of an insured.58 We also observe that MRE imposes obligation an on the trial court to any testimony ensure that expert scientific evidence admitted at all of a stages proceeding is reliable.59 “While the exercise of this role gatekeeper discretion, is within a court’s judge a trial neither may ‘abandon’ this obligation nor the function ‘perform ”60The trial inadequately.’ court must specifically en- expert sure that testimony is based on sufficient facts or data, the product of reliable and principles methods, and that applied witness has the principles and methods reliably to the facts of the case.

F. THE PROCEDURE WAS NOT REASONABLYNECESSARY FOR CARE, RECOVERY, THE OR REHABILITATION OF PLAINTIFF In case, failed present evidence to establish that the experimental surgical procedure at issue presented him with objectively verifiable opinion any way prevent This does not no-fault insureds from paying procedures “reasonably necessary” themselves that are not entering provide coverage. into insurance contracts that broader Adelman, Edry (2010). v 634, 639-642; 486 Mich 786 NW2d 567 We consistently have malpractice held that medical issues raised in medical experience understanding actions are not within the common jurors, they require expert See, testimony. e.g., thus the assistance of Stilwill, 587, 611; Wilson v (1981); generally 411 Mich 309 NW2d 898 see Bryant, 411; Osteopathic Hosp Corp, v Dorris Detroit 471 Mich 460 Mich 26; 594 NW2d 455 DaimlerChrysler Corp, Gilbert v 749, 780; 470 Mich 685 NW2d 391 (2004) (citation omitted). case, however, In this defendant waived this by failing object. Craig Hosp, v Oakwood 67, 82; issue 471 Mich (2004) (holding party may NW2d 296 that “a waive claim of error attention”). failing gatekeeping obligation to call this to the court’s 490 Mich 145 Opinion of the Court care, recovery, in his

chance that it would be efficacious Therefore, entitled to rehabilitation. defendant was or plaintiff a matter of law because did not judgment as recovery. meet the minimum threshold for testimony expert Plaintiff relied on the of two wit- nesses, Lima,61 Hinderer the RIM and Dr. to Dr. of “reasonably that was neces- procedure establish testimony Dr. Hinderer’s cast doubt on whether sary.” plaintiffs was efficacious in recov- procedure In Dr. Hinderer did ery, particular, or rehabilitation.62 endorse, recommend, prescribe procedure not Dr. Hinderer plaintiff.63 procedure testified neurologist, surgeon, participate Dr. Lima is a not a and he did not Lima, however, plaintiffs surgery. of Dr. described himself as member plaintiffs surgical team. that, best, During argument, plaintiffs oral counsel conceded at Dr. light regard procedure. Hinderer took a neutral stance with to the In admission, hardly testimony support Dr. Hinderer’s can found procedure reasonably necessary plaintiffs the conclusion was care, recovery, or rehabilitation. testify procedure approved Dr. Hinderer did Protocol,” approval. “Geneva which claims is similar to FDA We likely note that this was intended to be a reference to the Declaration of Geneva, which, Helsinki, together governs with the Declaration of the ethics principles of human medical research under set forth the World Medical Association, World Medical Association. See WMA Declaration Helsinki Subjects, Principles Involving —Ethical for Medical Research Human (access <http://www.wma.net/en/30pubhcations/10pohcies/b3/index.html> 20,2011). event, July any testimony only ed In Dr. Hinderer’s addressed regard “Geneva Protocol” in to whether it was safe and ethical for undergo purposes humans In of research. approval Protocol,” comparing process the FDA’s to the “Geneva Dr. really safety Hinderer testified that the “FDA first concerned about efficacy, staged approaches and then and the FDA does it in a set of being safety trial, being safety phases, [I] [II] Phase Phase continued monitoring early investigation efficacy, being [III] Phase primarily efficacy suggest focused on . ...” Dr. Hinderer did not something comparable FDA the “Geneva Protocol” had to Phase II investigation efficacy, review for or that had been efficacy fact, reviewed for manner. In Dr. Hinderer admitted Krohn v Home-Owners Opinion of the Court regarded necessary field his of medicine and certainly “[fit’s not standard of practice given its experimental nature.” More importantly, when asked whether surgical procedure the increased the chances of injured person’s potential for recovery, Dr. Hinderer agreed with defense counsel’s statement that “we don’t know the yet outcomes because this is such a new procedure.”

Further, Dr. Hinderer’s testimony actually confirmed that the undergo decision to the procedure purely was subjective. He candidly testified that

there are remotely individuals who would not even con- procedure; sider this there are others don’t who even want anything negative hear they about it because want to pursue it, everything between, know, you so it — someone, you know, placing relative to oneself in a situa- this, you know, personal choice, tion like certainly it’s a but understandable....

Taken in light the most favorable to plaintiff, Dr. testimony Hinderer’s provide does not any evidence experimental procedure presented plaintiff medically verifiable chance that it would be efficacious in his recovery, or Accordingly, rehabilitation. Dr. testimony Hinderer’s did provide not an objective basis from which a jury could conclude that experimental surgical procedure was reasonably necessary.

Dr. testimony Lima’s plaintiffs does save claim.64 Plaintiff maintains that afforded him the actually compare that he had not tried to the relative criteria of the phases preceding “Geneva Protocol” and approval. of review FDA testimony regarding procedure’s dissent relies on Dr. Lima’s conformity European guidelines regarding with the Commission’s clini procedures. guidelines verify cal There was no evidence that these efficacy any given procedure. most, guidelines suggest At these procedure may performed safely. 490 Mich Opinion of the Court much function to recover as possibility opportunity indeed Dr. Lima did injury his site. below possible if necessary reasonably claim func- to recover some the opportunity wanted plaintiff clearly has And injury below the site. tion to counsel’s Dr. Lima’s affirmative answer relied on whether, procedure, of the “as result may regain some level [plaintiff] exists that possibility injury site[.]” of function below however, cannot be measured without This possibility, in the establishing efficacy place. first objective evidence establishing cau- Further, legal as with the standard sation, efficacy enough, is not possibility the mere pure speculation the matter remains one of “when direct a duty it becomes the of the court to conjecture,... the defendant.”65 While Dr. Lima articulated verdict for support he failed to medical evidence to theory, present his conducted, it may he have was it. Whatever research studies, it had not been by any controlled unsupported had review, and the medical evidence subjected peer to Dr. Lima did not scholarly publications. been debated testimony any his on verifiable evidence that under- base The record going procedure the would be efficacious. testimony, best, personal that at reflects his reflects his the belief, hope, many patients undergo or that of the who the fact procedure improve. clearly by This is established very by Lima unex- “surprised” “quite that Dr. was sum, In Dr. procedure. results of Lima’s pected” plaintiffs objective also to an basis which testimony provide fails surgical jury experimental could conclude care, procedure reasonably necessary plaintiffs was or recovery, rehabilitation.66 Weymers Khera, 639, v 454 Mich 563 NW2d 647 assertion, holding plaintiffs Contrary we are not to dissent’s Instead, subjective undergo procedure unreasonable. decision to Krohn v Home-Owners Co Ins Opinion of the Court

G. RESPONSE TO THE DISSENT “[t]oday’s The declaration that decision dissent’s [MCL 500.3107] rewrites that a be require procedure ‘medically necessary’ ‘medically or in or- appropriate’ der for an insured to be or her reimbursed his patently opinion, insurer”67 is false. Nowhere dissent, find except response you to the will “medically phrases necessary” “medically appropri- falsely us, ate.” After ascribing these standards dissent uses them to set up argument straw-man thwarting by enacting that we are the will of the people rejected standards that were when 1993 PA 143 was rejected by referendum. This also patently false.

1. WE ARE INTERPRETING MCL 500.3107 opinion dissent claims that our language adds MCL 500.3107. obviously disagree We with this charac- terization. We believe that give dissent fails to meaning portion to the of the provision that states “for injured person’s care, recovery, or rehabilitation” by concluding that evidence of a treatment’s efficacious- ness is not required to prove reasonably A necessary. treatment or procedure that has not been simply holding plaintiff presented we are that because no “care, evidence that the would have beneficial effect on his recovery, rehabilitation,” satisfy requirement he failed to of MCL 500.3107(1)(a) “reasonably necessary [for his] Nasser, recovery, or rehabilitation.” Under 435 Mich at and this Co, in Wilcox v State Farm Mut Auto Ins Court’s more recent statement (2010), agree 488 Mich 1011 we with the dissent that in “most cases” a jury proper reasonably is the vehicle to determine whether a necessary. However, here, as we hold medical treatment lacks objective efficacy cannot ever be considered and verifiable evidence of “reasonably necessary,” and thus the issue should be decided as matter of law. 67 Post at 188. 490 Mich Opinion Court shown to be efficacious can be neither “reasonable” nor “necessary” under the act. no-fault

Our interpretation gives meaning of MCL 500.3107 phrase “reasonably necessary injured to the . . . for an recovery rehabilitation,” and, care person’s doing so, define the minimum we amount of evidence that presented question must be on the before matter becomes a and genuine material of fact suffi- jury cient to be submitted to a for its determination.68 merely We conclude that reasonably necessary standard cannot be met when there is no evidence that medical treatment will have beneficial effect on the “injured person’s care, recovery, or rehabilitation.” legal is,

It is a bedrock principle “[i]t emphati cally, province duty judicial department, say what the apply law is. Those who the rule to cases, particular must of necessity expound and inter pret that rule.”69 This Court stated that “it is neces sary . . . that the law certain, shall be known and shall not on each depend jury that tries a It cause.”70 is axiomatic that courts decide questions juries of law and the law apply given them to the as they facts have found them. principle This is reflected in jury our model civil instructions, and the trial court jury instructed the Ass’n, 314, 326; The dissent cites Owens v Auto Club Ins 444 Mich (1993), proposition 506 NW2d 850 for the that “an issue of fact still jury existed for the to resolve” “even if doubt was cast one of the two assessing physicians Owens, .. . .” Post at 185. Unlike the situation in plaintiffs expert independently cumulatively witnesses here either testify failed to and verifiable evidence existed to establish experimental surgical efficacious, and therefore reasonably necessary plaintiffs recovery, or rehabilitation. Be presented by any expert genuine cause no evidence was to create a issue fact, principles implicated by of Owens are not this case. (1 Cranch) (1803). Madison, Marbury 137, 177; v 5 US 2 L Ed 60 People, Hamilton v 29 Mich Krohn v Home-Owners Opinion op the Court consistently with those instructions.71 do not add We 500.3107(1)(a), language expound to MCL but upon phrase “reasonably necessary. . . for an injured per care recovery provide son’s or rehabilitation” to essen legal guidance.72 tial

We find the dissent’s overwrought protestations re- garding “stringent” the so-called standard that opinion dissent claims this articulates. we Again, merely hold that an insured must establish that medical care, treatment is efficacious in recovery, his her rehabilitation. We conclude that this standard is en- tirely consistent meaning with the common of the phrase “reasonably necessary... for an injured per- care, recovery, son’s or rehabilitation.” On the other hand, the dissent’s that a position reasonably necessary treatment is treatment that a person hopes could possibly work falls far short of any commonly accepted meaning “reasonably necessary. injured . . for an person’s recovery, or rehabilitation.” The dissent’s standard would allow a treatment— nonefficacious which is worthless —to be “reasonably considered nec- essary” for the sole reason that an expert witness offered an opinion that the medical treatment is rea- (“You give you,” See M Civ JI 2.01 must take the law as I it to are.”). responsibility jurors “Your is to decide what the facts of the case previously stated, litigation context, As outside the the dissent’s position provides absolutely guidance no for how to determine the issue necessity. By providing meaning 500.3107, of reasonable to MCL opinion provides guidance community— to all members of the relevant insureds, adjusters trying insurance claims to determine whether covered, lawyers, experts, medical is medical and so forth —to that, personal protection benefits, know as with other insurance there efficacy coverage must be and verifiable evidence of before contemplated under the no-fault act. We believe that all interested parties knowing responsibilities are better off their and liabilities before necessity litigation position provides arises. The dissent’s no guidance community generally, whatsoever —not and not even to juries questions necessity.” who must decide of “reasonable 490 Mich 145 Opinion op the Court For the same reasons that we caution

sonably necessary. opinion trial not to “admit evidence which is courts dixit of the existing only by ipse connected to data reasonably believe that what constitutes a expert,”73 we solely be based on necessary medical treatment cannot And recognize dixit of a while we ipse physician. standard, efficacy, evidence of requires our which more than the dissent’s standard of let the imposing out, that medical jury figure repeating it bears treatments, protection like other insur- personal benefit, reasonably ance must be efficacious to be necessary. Ignoring principle this basic sanctions the anything-goes whereby every dissent’s in- approach, sured’s demand become payment inexplicably would paid a of fact and no-fault benefits would be effective, treatments not even shown to be reliable or necessary. let alone reasonable or 2. 1993 PA 143 interpretation dissent maintains that our 500.3107(1)(a) MCL thwarts the will of the voters as expressed election, in the 1994 in general which the But, PA rejected explained earlier, voters 143. in argument, order to advance this the dissent must legal ascribe to us standards not adopted opin Further, ion. are unfamiliar we with method of statutory that interpretation interpretation commences of an existing by reviewing statute not the words of that statute, by examining language but instead of one rejected by Employing referendum. this method of interpretation, the dissent experi maintains surgical procedure may mental never be deemed unrea sonable as a matter of jury always law and that a must 73 Gilbert, Joiner, quoting 470 Mich at General Electric v 522 US 136, 146; 512; 118 S Ct 139 L Ed 2d 508 Krohn v Home-Owners Opinion of the Court determine what is reasonable and necessary, regardless of the evidence at presented trial. PA 143 would indeed have amended MCL (4)(c)

500.3107 to state subsection “[e]xpenses within personal protection insurance coverage shall not include experimental treatment or participation re- search projects.” logic But it defies to presume that experimental because total bar on treatments was voters, rejected by the necessity reasonableness and all experimental treatments must be resolved jury. Following the dissent’s if reasoning, a medical doctor opined treatments such as apricot pit theory, ear candling, homeopathy, magnet therapy, psychic surgery possibly give could an insured a chance recover, a jury would have to resolve whether those treatments necessary were reasonable and to the recovery, or rehabilitation of the insured.74 This could possibly be the effect of the PA rejection of 1993 143.

Further, least Michigan [a]t one court has declined to adopt statutory method of adopted construction here the dissent. In Michigan Council v Chiropractic Fin & Ins Servs Comm’r75 the Court of Office of Appeals was asked rejection by to assume that ballot referendum of 1993 PA 143 amounted to a rejection by the voters of every single aspect of the act. The Court of did Appeals accept argument. this Court Appeals of observed that PA “1993 143 made comprehensive changes to Michigan’s no-fault insur- 74 Surely require the dissent'would not an insurer to reimburse the cost placebo pills. Yet, the dissent would hold that there remains experimental surgical procedure reasonably of fact whether here is necessary, though presented even no evidence that efficacy placebo. has more demonstrated than a 75Michigan Chiropractic Comm’r, Council v Fin & Ins Servs Office of 228; App (2004), 363; 262 Mich 685 NW2d 428 vacated 475 Mich NW2d 561 Mich Opinion Court rejected Because the referendum the act

anee scheme. entirety, bearing [specific it has little on the its agree this case.”76 We with presented in] issue that 1993 PA 143 was a panel Council Chiropractic bill, and can only insurance reform one comprehensive PA 143 rejection signified whether the of 1993 speculate treatment expected every type experimental that voters Indeed, language under the no-fault act. be covered did not even mention proposal experimental on the ballot and, engages guesswork treatment.77 The dissent on basis, Michigan believes that voters intended its all under rubber-stamp courts to determinations Council, Chiropractic App 262 Mich at 246 n 12. language The official ballot stated: PROPOSAL C A REFERENDUM ON PUBLIC ACT 143 OF 1993—AN AMENDMENT TO MICHIGAN’SAUTO INSURANCELAWS

Public Act 143 of 1993 would: ) (average) 1. Reduce auto insurance rates 16% for six (medical) policyholders reducing personal injury months for coverage insurance to million. Extra made available at added $1 cost. ) company’s 2. Permit Insurance Commissioner to waive obli- statutory gation to reduce rates if formula would be in excess of average. 1989-1992 state ) (medical) personal injury 3. Place on limits benefits. ) providers. paid 4. Limit fees to health care ) right by setting higher Limit 5. to sue standards for the recovery damages “pain suffering” prevent unin- collecting sured drivers and drivers over at fault from 50% damages. ) driving 6. Allow rate reductions for accident-free with the same insurer. Krohn Home-Owners Co v Ins Opinion Court act, regardless no-fault of the of evidence paucity sup- jury’s finding regardless unrea- porting how unnecessary expense sonable and may be. We base opinion our on the current law. We do not base on once or could what law have been.

This case does not turn on PA any aspect 143. already stated, reject As we defendant’s claim that prevail merely cannot because the procedure was experimental. reject Appeals’ We also the Court of holding that an insured required prove that an experimental surgical procedure gained general has in the acceptance community medical before consider- ation the trier of fact. The question whether an experimental reasonably treatment necessary for an care, recovery, insured’s or rehabilitation must be re- solved a fact-finder if the can present objec- insured tive verifiable medical evidence support conclusion that the treatment is efficacious. The dissent maintains that this is an illusory because, standard if objective and verifiable medical evidence of efficacy exists, “it is unclear how the would still be termed ‘experimental’ the ‘research’ phase.”78 But practices of the FDA establish that an efficacious treatment may nonetheless be experimental. The FDA has phases three of testing before a medical procedure or product receives full FDA approval. II Phases and III of the FDA process, which the treatment is still or in experimental the research phase, focus on efficacy. This is but one And example. contrary to the dissent’s representation, we do not hold that the objective and verifiable medical evidence must include “controlled subject studies to peer scholarly review or publications” supporting the science behind the surgery.79 Likewise,

78 Post at 190.

79 Post at 189. 490 Mich 145

Opinion of the Court way suggesting FDA are in no that data from the are we required. examples Rather, these are additional of ob jective and that can effi verifiable evidence establish cacy. by expert an Presentation witness of this objective opposed evidence, if and verifiable even claiming proposed several witnesses medical treat plaintiffs efficacious, ment is not is sufficient to sustain experts, burden. Since we are not medical are not we going artificially objective types limit the and party may present support that a verifiable evidence simply claim; instead, its we note that there must be community some evidence from the medical that a particular procedure would have some beneficial effect person’s recovery, “care, on a rehabilitation” 500.3107(1)(a). accordance with MCL IV CONCLUSION question product, We conclude that the whether a reasonably necessary service or accommodation is injured person’s recovery, care, or rehabilitation objective must be determined under an standard. We further conclude that when medical treatment is experimental, seeking an insured reimbursement for objective present this treatment must and verifiable establishing medical evidence that the treatment A efficacious. treatment or that has not been shown to be efficacious cannot be reasonable or necessary under the no-fault act. An insured’s sub- jective efficacious, belief that medical treatment necessary reasonable, is not sufficient to create light of fact. in the Viewed most favorable to plaintiff, and verifiable medical evidence presented experi- at trial failed to establish that the surgical procedure mental any way at issue this case was recovery,

efficacious or rehabili- v Home-Owners Krohn Dissenting Opinion Hathaway, J. tation of plaintiff’s injury.80 Accordingly, we affirm the of the Court of judgment Appeals. Mary

Young, C.J., JJ., Kelly, and Markman Beth J. ZAHRA, concurred with (dissenting). J. This case addresses

HATHAWAY, whether a medical on performed plaintiff to treat his severe accident-related spinal-cord injuries 500.3107(1)(a) “reasonably necessary” under MCL act, of the no-fault MCL 500.3101 et seq.

holds that the procedure “reasonably was not neces and, sary” so, in adds doing language to the no-fault act that referendum rejected by was ballot in 1994. The reaches its result erroneously removing the determination of expenses which are “reasonably nec essary” jury. from the Additionally, majority’s the new judicially crafted definition of “reasonably necessary” elevates the standard proving for that treatment “reasonably necessary” to one that is more stringent 500.3107(1)(a) than MCL I requires. respectfully dis today’s sent because decision erroneously changes the mandates of the no-fault act and replaces them with standards that are inconsistent language with the and history of that I apply act. would the statute as written the uphold jury’s finding that the procedure per plaintiff formed on was “reasonably necessary.” There fore, I would reverse the Court of Appeals’ judgment plaintiff and hold that is entitled to reimbursement of the costs procedure. associated with the plaintiff proce Because we hold cannot demonstrate that the “reasonably necessary” care, recovery, rehabilitation, dure was to his argument proce we need not address defendant’s alternative “lawfully compensable dure was not rendered” and therefore not under the no-fault act. 490 Mich 145 Opinion by Dissenting Hathaway, J. request that his no-fault plaintiffs

This case involves insurer, Company, Home-Owners Insurance defendant expenses surrounding experi- reimburse him for the in Portugal. that he underwent procedure mental spinal- to treat the serious procedure performed was motorcycle had in a injuries plaintiff cord sustained accident left no paraplegic accident. The with body, him leaving sensation or control his lower to a and in need of assistance confined wheelchair defecating. His condition showed no urinating years four his acci- improvement during the between procedure. According plaintiffs expert dent and the witness, condition plaintiffs improved following However, defendant refused to for the procedure. pay it was not procedure, arguing “reasonably neces- sary” “care, recovery, plaintiffs rehabilitation”1 experimental because it in nature.

During trial, from jury plaintiff presented testimony his Lima, neurologist surgical Dr. Carlos on the team that Dr. Lima performed procedure. testified procedure harvesting containing involved tissue stem cells plaintiffs from own sinus cavities and transplanting injured spinal tissue into area of cord. Dr. Lima testified that fosters of new growth cells cord, injured spinal avoiding while the ethical and surrounding embryonic technical issues use stem had not Although presented cells. been by the federal approval Drug Food Administration (FDA),Dr. Lima testified that it conducted was within European guidelines standards of the Commission’s re- clinical garding procedures. performed Lisbon, in a in after the governmental hospital Portugal, had obtained from the hos- presiding physician approval pital patients board. Dr. Lima testified that of the 110 who 500.3107(1)(a). MCL Krohn v Home-Owners Dissenting Opinion J. Hathaway, had undergone program, the treatment his a majority the patients improvement. showed Dr. Lima’s testi- mony describing the success of the included the following:

Q. you patients undergone had Have who have this stem surgery ability cell recover their to walk? unassisted,

A. Not but we have—and [sic] this is rule patients walking now for our to be assisted with a walker. patients. That’s rule now for our Q. your patients Have some of recovered movement injury surgery? below the site after this A. Yes.

Q. patients improvement Have some of the shown injury sensation below the site?

A. Yes.

Q. Overall, you you would describe—how would describe degree surgeries patients? of success of the on Well, maybe right person say that, A. I’m not why publish that’s we want to the whole results of the patient, say majority patients but I would have some improvement. kind of

Plaintiffs treating States, doctor the United Dr. Steven Hinderer, also testified concerning the reasonableness procedure, and responded to questioning follows:

Q. everything you And based on know about this sur- gery light [plaintiffs] injury and in your and with experience patients all undergone with the other that have surgery, you did consider it a reasonable form of [plaintiff] surgery treatment for to have this if his try recovery was to injury increase his below the site? A. Yes. 490 Mich Dissenting Opinion by Hathaway, J. jury found that the related to the expenses

surgery Portugal in were reasonable for charges reason- ably services, and necessary products, accommodations care, plaintiffs recovery, and rehabilitation under the no-fault act. The Court of Appeals, however, re- jury’s finding versed ordered the trial court to judgment enter a in defendant’s favor.2 Plaintiff now that appeals decision.

The issue before this Court is whether an experimen tal medical can procedure “reasonably necessary” injured an person’s recovery, or rehabilitation.3 Deciding requires this issue of MCL application 500.3107(1)(a). statute,

When interpreting we follow estab- statutory lished rules of construction. The purpose statutory construction is to discern and give effect to Co, unpublished opinion per Krohn v Home-Owners Ins curiam of the (Docket Appeals, January 26, 283862), Court p issued No. 6. argues “lawfully Defendant that also treatment was not ren procedure dered” under MCL 500.3157 of the no-fault act because the performed Portugal approved on has not been in the United by provides pertinent part States the FDA. MCL “[a] 500.3157 physician, hospital, person lawfully clinic or other or institution render ing injured person bodily injury treatment for an accidental covered by personal protection may charge insurance ... a reasonable amount for products, services and accommodations rendered.” case, In likely “lawfully I believe that was ren- Portugal, performed. dered” because it was lawful where it was Therefore, persuasive Appeals I find the Court of dissent’s conclusion adopting position require defendant’s would that the statute would provide coverage ‘lawfully have to “be rewritten to for treatment ren- ” approved Krohn, unpub op dered in the U.S. and the FDA.’ at 10 J., dissenting). Legislature (Fort incorporate Because did not Hood, language statute, appears such into the it “lawfully rendered” under MCL 500.3157 it because was lawful in Portugal. However, opine argu- because the does not on this ment, necessary argument I do not find it to consider this in detail in this dissent. Krohn v Home-Owners Dissenting Opinion J. Hathaway, Legislature.4 doing so, intent In we first look to the language actual of the If a statute.5 statute is clear unambiguous, must be enforced as written and judicial no further Simply construction allowed.6 stated, we must avoid a that render construction would any part nugatory,7 statute we similarly, and are “not add free to to a language interpret statute or to statute on the basis of this Court’s own sense of how the Further, statute should have been written.”8 a statute whole,9 must be read as a and while individual words and phrases are important, and phrases words read in should be the context of the entire legislative scheme.10And “when courts interpret the no-fault act in particular, they are act remember remedial in liberally nature and must be construed favor persons of the intended to benefit from it.”11 issue,

The statute at MCL 500.3107(1), provides pertinent part:

(1) Except provided (2), personal pro- in subsection payable tection insurance benefits are following: for the (a) expenses Allowable consisting of all reasonable charges reasonably necessary products, incurred for ser- 4 McLeary, 397, 410; (2009), citing Potter v 484 Mich 774 1 NW2d Sun Valley Ward, (1999). 230, 236; Foods Co v 460 Mich 596 NW2d 119 5 Id. 6 Valley, Sun 460 Mich at 236. 7 McGraw, People 120, 126; (2009), v citing 484 Mich 771 NW2d 655 (1980). Corp, 639, Baker v 665; Gen Motors 409 Mich 297 NW2d 387 8 Rim, Kirkaldy (2007) 587; v 478 Mich 734 201 NW2d (Cavanagh, J., concurring). 9 Valley, See Sun 460 Mich 237. at (2008). Co, 352, 366; Herman v Berrien 481 Mich 750 NW2d 570 Ass’n, 22, 28; (1995), Turner vAuto Club Ins 448 Mich 528 NW2d 681 citing Co, 51, 61; v Gobler Auto-Owners Ins 428 Mich NW2d 490 Mich Dissenting Opinion Hathaway, J. care, person’s injured recov- for an

vices and accommodations expenses personal ery, within or rehabilitation. Allowable charges coverage not include protection shall insurance customary charge hospital of a and in excess reasonable room injured except person if the semiprivate accommodations requires special or for funeral and burial or intensive policy not expenses amount set in the which shall in the forth $5,000.00. $1,750.00 less or more than than expense for an holds that order procedure to be experimental surgical related must first determine as “reasonably necessary,” court “objective and verifiable a matter of law there is experimental [the establishing medical evidence Further, major- surgical is efficacious.”12 procedure] ity “objective did not meet the holds that Dr. Li- verifiable medical evidence” standard because ma’s “was controlled unsupported research studies, subject review, peer in scholarly publica- medical was not debated evidence lan- Thus, tions.”13 the new standards add majority’s not guage simply to the statute there. case, testimony In there from two doctors was before plaintiffs procedure who assessed condition the Dr. testified that it would be performed. was Lima undergo procedure the necessary plaintiff for to Dr. did recovery. order to have a chance at Hinderer not procedure state that he was able to recommend the to because the was not an autho- plaintiff procedure States, in the he also procedure rized United but form of procedure testified that the reasonable Dr. majority The characterizes plaintiff. treatment efficacy doubt on the of testimony casting Hinderer’s endorse, did “Dr. Hinderer the because 12Ante at 148.

13Ante at 170. Krohn Co v Home-Owners Ins Dissenting Opinion by Hathaway, J. recommend, or prescribe plaintiff.”14 the to This characterization is erroneous. facility fact dismisses the Hinderer,

where was treated Dr. the Reha- bilitation Michigan, Institute of has a rela- professional tionship with Dr. Lima’s program Portugal pursuant to which the Rehabilitation patients Institute screens determine they whether meet the criteria to eligible for the Dr. procedure. program Lima’s has performed procedure on patients from around the world. Lima, According to Dr. the Rehabilitation Institute has nearly screened 60 patients for the Of the procedure. patients Institute, from Rehabilitation 40 were Dr. Hinderer’s patients. Thus, I with disagree majori- ty’s Dr. assertion that Hinderer on cast doubt efficacy of the procedure. More than a third patients in the program worldwide were patients Dr. Hinderer, which, when in a light viewed most favorable to the plaintiff,15 suggests that Dr. Hinderer does not doubt the procedure. However, effectiveness even if doubt was cast one of assessing the two physicians, an issue of still fact existed the jury under resolve Owens v Ass’n, Auto Club Ins 314, 326; 444 Mich (1993).16 NW2d 850 Today’s decision erroneously holds that the jury should not have decided this genuine issue of material fact.

14Ante at 168.

15This case involves defendant’s motion for a directed verdict. “The judgments standard of notwithstanding requires review for the verdict legitimate light review the evidence all inferences most party.” nonmoving Drug Co, favorable vOrzel Scott Mach 557; (1995), citing Ins, 537 NW2d 208 Wadsworth v York New Life 240; Mich 84 NW2d 513 16 presentation competing professional opinions Owens held that the of enough from doctors who assessed the to create a of regarding procedure “reasonably fact necessary.” whether the was Owens, 444 Mich at 326. Mich

Dissenting Opinion by J. Hathaway, incorrectly con- jury the majority The holds “reasonably necessary.” was cluded of disregards much result, majority the reaching In this instance, Dr. Lima testimony For presented.17 the actual no possi- “there’s procedure, without the testified that such any recovery [an with bility for to have [plaintiff] functionally complete, but just not injury] which is also.” complete destructive anatomically very was who assessed Lima’s shows that doctor Dr. statement possibility no condition found that there was plaintiff’s recovery procedure. of before sug argues testimony that Dr. Lima’s majority

The to recover” gests possibility opportunity “the or merely be without that a . .. cannot measured “possibility efficacy in the first establishing evidence with the actual place.”18 argument This is at odds 500.3107(1)(a) it contains MCL because language of of the language found in the statute. standards not “reasonably only requires statute There an allowable necessary” qualify expense. fore, proce be limited to whether analysis should commonly necessary” under the “reasonably dure does meaning of those words.19The statute understood majority acknowledges he Dr. Lima testified that While the say majority improvement,” patients some “would of showed “hardly testimony “guess” as a mischaracterizes ” ‘majority patients improvement.’ Ante that a showed demonstrates However, illustrates, majority’s testimony n 5. as the actual at 153 Further, supported record. of these facts is characterization disagreed majority’s jury apparently of Dr. with the characterization Lima’s statements. at Ante 170. reasoning; 2. Capable “1. rational. is defined as “Reasonable” thinking. in accordance with reason or sound 3. Within Governed Dictionary Heritage sensei.]” The American the bounds common (1981) added). College (emphasis English Language, “Nec New Edition continuing essary” as “1. Needed for existence function- defined v Krohn Home-Owners Dissenting Opinion by Hathaway, J. not contain any language limiting the of a basis “rea- sonably necessary” determination to and veri- objective data, fiable medical as required by today’s is decision. The majority also errs it because misconstrues the the meaning “reasonably necessary.” of term Without statutory support, word interprets the “reason- ably” “objective to mean and verifiable.” The majority then declares that the term a “necessary” creates strict requiring standard “efficacy.”20 “evidence” of The evi- ing something; essential; indispensible of .... 2. Needed to achieve a effect, requisite: necessary (emphasis certain result tools.” Id. added). together, “reasonably necessary” When the terms are two read something proper indicates is essential and under the circum- stances. majority rejects my analysis, claiming legal that it no offers determining procedure “reasonably necessary” standard for whether a is 500.3107(l)(a). However, throughout my under MCL as remains clear analysis, merely applies statutory interpretation, this dissent our of rules require given meaning which that these words be their common when the provide Thus, a statute does not technical definition them. MCL 8.3a. majority’s merit, given is I accusation devoid that concludethat the commonly meaning determination should be based on the understood “necessary,” injecting the words “reasonable” rather than a statuto- rily unsupported requirement procedure “medically” that the reason- ably necessary. Thus, that, 500.3107(1)(a), I would hold as in used MCL “reasonably necessary” person is if a reasonable would conclude that the “necessary” “injured person’s care, recovery, tool for And, dissent, jury rehabilitation.” discussed in most cases apply position necessary in the best the common sense to make this determination, using and can make that determination a number of commonly applying meaning factors. It is clear that understood of the statutory phrase “reasonably necessary” is more consistent with the legislative provide ample guidance parties intent and does and courts. 20Turning “reasonably necessary” requires standard into one that proof efficacy may prove troubling and verifiable for this cases, considering “reasonably necessary” Court future statutes, appears Michigan rules, standard than 100 more our court Michigan example, and the Rules Professional Conduct. will For majority’s “reasonably necessary” apply new standard for in cases 490 Mich 145 Dissenting Opinion J. Hathaway, only be satisfied refers can

dence the “medical commu- from thorough evidence with contain us does not However, statute before nity.”21 “evidence,” “effi- “verifiable,” “objective,” terms community.” or “medical cacy,” words principle, own stated majority’s Under the provide In order to read into this statute. cannot be standard, the statute new majority’s for the support contain, minimum, indi- language to at a have would if relate to only they are allowable cating expenses by the “proven to be efficacious are procedures However, lan- or the FDA.” such community medical all practical no-fault act. For not in the guage is necessary” “medically “medically is a purposes, standard, state- despite majority’s the appropriate” rewrites Thus, decision contrary. today’s ments to the “medically that a require the statute in order for an “medically necessary” appropriate” her his or insurer. insured to be reimbursed 141.913b(3), sharing, regional regarding MCL convention facili revenue 440.2503(1)(a), 141.1369(10)(d), goods, ties, the of MCL MCL tender 440.4802(1)(b), transfers, agreements with auto manu MCL dealer funds 450.2443(2)(c), facturers, 445.1575(2), nonprofit corporations, MCL MCL associations, 491.314, churches, 458.257, cooperative savings MCL MCL fees, 259.118(3)(c), produce 285.321(5), facilities, airport MCL MCL farm defendant, 330.2020(1), competence water and the of criminal MCL 333.12713(2), application decisions, the the of rules of sewer board MCL 1.6(c)(3)? misconduct, evidence, 803(4), attorney MRPC MRE and concerning testimony majority disregards the the success noted, majority program. patients As the in Dr. Lima’s clinical other may conducted, unsup “[w]hatever he have it was states that research studies, subjected review, peer not ported it had been controlled scholarly publica had evidence not been debated medical Thus, majority’s requiring under the test evidence Ante at 170. tions.” heightened efficacy procedure, proving of the standard is supporting met threshold of cannot be with a minimal standard that evidence, disproving presented there is no evidence even when procedure. of the effectiveness Krohn v Home-Owners Dissenting Opinion by Hathaway, J. In response criticism, to this proclaims that nowhere in its opinion does use the phrases “medically necessary” or “medically appropriate,” ex- cept response its to this dissent. But the majority need not invoke magic those for it to words be obvious to all that this is precisely what the majority’s new A requires. standard requires standard that presen- tation of objective and verifiable medical evidence es- tablishing efficacious, a treatment is generally based on controlled subject peer studies review or scholarly publications, “medically is a stan- necessary” dard. The majority’s statements contrary to the do not change practical reality of its new standard.

In reviewing the actual language statute, it is clear that the determination whether a procedure is “reasonably necessary” involves analyzing whether the undergo decision to the procedure reason, was within light of testimony that plaintiff would recover if he did nothing.22 Moreover, it must not be forgotten that jury plaintiffs peers found that the procedure was “reasonably necessary” “care, plaintiffs recovery, By rehabilitation.” making this broad decision today, majority the has turned a that was found to be “reasonably necessary” “care, for plaintiffs recovery, or rehabilitation” into an unreasonable case, choice. In this majority the effectively asserts that it was unreasonable as a matter of law for this plaintiff to have pursued only the procedure that could possibly prevent him from being paraplegic the of rest his life. 22 Co, 521, 548; See v State Farm Mut Ins 472 Auto Mich 697 Griffith (2005) (Marilyn (“Given J., dissenting)

NW2d variety the wide Kelly, injured parties benefits, circumstances under which seek no-fault the provides act determining for wide latitude in what benefits are reason situation.”). ably necessary given in a Mich Hathaway, J. Dissenting Opinion ultimate majority “[t]he states that

Further, the here is at issue surgical procedure the question whether does not turn the no-fault act expense under a covered this However, despite as experimental.”23 its status on statement, experimental procedures participation cov- effectively excluded from are projects research new majority’s of law under the as a matter erage requires objective standard majority’s standard. proving procedure’s evidence verifiable medical how exist, if it is unclear efficacy, such data were but “experimental” be termed the would still phase. the “research” contrary, to the Despite majority’s protestations well-established today prece- decision also abandons its 54; Ass’n, 33, Mich In v Auto Club Ins dent. Nasser “the (1990), Court stated that 457 NW2d 637 rea- whether are reasonable and question expenses fact jury” is one of for the sonably necessary generally granted should summary only and that disposition necessity of a procedure when the reasonableness and “certainty” the evidence can be determined with when nonmoving to the light in the most favorable viewed Owens, In 444 Mich at this Court stated party.24 opin- competing professional that presentation enough ions from doctors who assessed regarding of fact whether create 23Ante at 158-159. quotation marks omitted. Nasser instructed courts Citation and certainty” expense “with that an was was not

unless it can be said “reasonably necessary,” inappropriate as a to decide issue clearly words, proposition of law. In other Nasser stands for matter Thus, only decided as a matter of law. in rare cases will this issue be ‘reasonably majority’s “expound upon phrase neces efforts to ” legal guidance,” sary’ purportedly “provide are essential order being “entirely “provid unnecessary. with” and Rather than consistent Nasser, along” opinion ing guidance further lines overruling it. borders on Co v Home-Owners Krohn Ins Dissenting Opinion by Hathaway, J. “reasonably necessary.” Rather than following existing precedent holding that the deter- mination a procedure “reasonably of whether is neces- sary” is one for the jury, majority the transforms this a question into of question law.

Today’s particularly decision is troubling given that, recently as a of majority December this Court clarified a Court of Appeals remand order had “ stated a cost an £[w]hether constitutes allowable ex pense is a question of law and so it to be is determined ” court, the jury.’ Wilcox v State Farm Mut Co, Auto Ins 488 Mich 1011 This Court’s clari fying order instructed

[a]lthough expense whether an constitutes “allowable 500.3107(1)(a) expense” generally under MCL question Co, court, v State Farm Mut Auto law Ins Griffith 521, 525-526; (2005), Mich 697 NW2d 895 question “the expenses whether reasonably necessary are reasonable generally Nasser jury,” [435 one fact for the Mich at 55]. Therefore, questions extent that are there material pertaining expenses fact to whether in this case are reasonably necessary, questions reasonable and these fact by jury. [Id. must be decided 1011.] at In of this light Wilcox, Court’s recent decision it is unclear it is why suddenly necessary to change way “reasonably necessary” is decided. How has this Court’s precedent become so unclear in such a short Why time? must this Court now effectively reverse the instructions Wilcox and disregard Nasser?

Finally, perhaps the most significant evidence that the majority errs is that Legislature enacted a bill taking majority’s approach, prece- Instead of I would adhere to generally jury, dent and leave what is of fact to the where it otherwise, properly belongs. holding In usurps the role of Legislature jury. and the Mich Dissenting by Opinion J. Hathaway, majority to that which inserting language similar this state today, and the voters of to the statute adds PA 143, Legisla- In referendum. byit rejected creating a to act, standard amended no-fault ture to the standard similar expenses allowable determine 500.3107(1), MCL today.25 adopted has 143, 1993 PA stated: by amended (1) (3), pro- provided personal Except as subsection following: for payable tection are benefits (a) that, expenses policies or re- for issued Allowable days date of the on after 120 after the effective newed (7), provided amendatory subsection are as act added (i) (ii), medically appro- subparagraphs incurred for and products, services, an priate and accommodations for in- care, recovery, policies jured person’s or rehabilitation. For days after 120 after the effective issued or renewed on or (7) amendatory and date of the act added subsection commissioner, approved by an insurer shall on forms following coverages and an insured shall select in offer the writing following coverages:

(i) consisting of all Coverage expenses for allowable charges up to a maximum incurred reasonable $1,000,000.00 products, services, medically appropriate for care, injured person’s recovery, and for an accommodations or rehabilitation....

(ii) consisting Coverage expenses for of all allowable $2,000,000.00, charges up to incurred reasonable $5,000,000.00 $3,000,000.00, $4,000,000.00, or máximums insured, may by the the insurer as selected and offer limits, prod- coverage medically appropriate for additional 143, Engler Legislature 1993 PA and Governor John enacted August 6, go signed was set into effect on law on 1993. The bill to into however, 1,1994. 1, April petition April for referendum was filed Before containing required signatures place the referen number of valid filed, petition PA 143 was dum on the ballot. When suspended Co Mich v referendum vote. Farm Bureau Mut Ins for the 361; Comm’r, App 204 Mich 514 NW2d Ins Krohn v Home-Owners Dissenting Opinion by Hathaway, J. ucts, services, injured person’s and for accommodations an care, recovery, or [Emphasis added.] rehabilitation .... 500.3107(4), Additionally, MCL as added 1993 PA in pertinent stated part: As used in this section: (a) Medically services, appropriate products, and accom- prescribed facility

modations rendered or a health care provider or health care medically are that are those neces- sary .... Under no circumstances shall an insurer be required service, provide coverage any product, medically appropriate accommodation that is not medi- cally necessary injured person’s recovery, reasonably likely provide continued rehabilitation respect injured with person’s effectiveness to the recovery, designate or rehabilitation.... Each insurer shall person providers a whom with can discuss insurer deter- medically minations what appropriate medically of and necessary. Disputes charges over medically reasonable and appropriate services, medically necessary products, and question by accommodations shall be a law to be decided of the court. (c) Expenses personal protection within insurance cov- erage experimental partici- shall not include treatment or projects. [Emphasis pation in research added.] In 1994, November C Proposal asked the voters of this state to consider whether require- amended ments imposed by 1993 PA 143 embodied what the law of ought this state to be. In the referendum, Michigan voters overwhelmingly Thus, answered “No.”26 the citi- zens of Michigan expressly rejected “medically a neces- sary medically appropriate” standard, a requirement percent reject 60.85 voted to the enactment of 143. 1993 PA 39.15 percent accept Michigan 1995-1996, voted to the enactment. See Manual 955. p 490 Mich Dissenting by Opinion J. Hathaway, law, of as a decided courts disputes

that against coverage and, significantly, prohibition most in re- participation treatment or “experimental projects.”27 search elements, these three rejections the voters’

Despite act. The inserts them into the no-fault today’s decision to that, attempted 1993 PA because argues numerous system the no-fault with broadly reform unclear 500.3107, MCL is somehow changes to specific reforms actually rejected the voters whether today.28 enacts This reason- majority judicially ing illogical. is misguided First, to elements for this Court insert improper it is action rejected of a law into a statute because such The voters engineering of statute. judicial amounts to C, PA has Proposal Legislature on 1993 spoke rejected these three subsequently add chosen for the act, wrong and it is into the no-fault elements 1963, today. importantly, Const majority to do so Most 2, power § “[n]o art law as which the 9 states has invoked shall be effective referendum been properly rejected Proposal attempts the first C was not time the voters Legislature change the of the no-fault act. In November mandates ballot, by Legislature placed proposal initiative on the would, act, placed petition, among changes other to the have no-fault soundly Proposal caps D 1992 certain on no-fault benefits. was also rejected, voting against percent and 37.4 initiative with 62.6 voters Michigan voting percent 1993- of for the initiative. See Manual voters 1994, only attempts p the the voters have “No” to two 878. Because said act, majority by Legislature the reform the it is clear that the to no-fault is, way changes. of voters the no-fault act the it without want 28 by majority attempts argument citing The to the Court of bolster this Appeals’ opinion Michigan Chiropractic v Fin & Ins Council Office of 228; (2004), Comm’r, App 475 Mich 428 vacated Seros 685 NW2d (2006). However, opinion that lack of Mich 363 this Court vacated justiciability, meaning improperly before in the case were issues majority’s Accordingly, persuasive. I do not citation the Court. find the Home-Owners 2011] Krohn v Dissenting Opinion Hathaway, J. by majority

thereafter unless of the electors approved general thereon at the next election.” voting Second, argue it is to there is no disingenuous way to determine element of the law the specific which rejected. rejected The voters the entire law. Plain voters Thus, the voters said “No.” it borders on simple, argue only nonsensical for this Court to that the voters disagreed specific with elements of the act and that we A vote, do not know which elements. referendum such C, vote, as that Proposal all-or-nothing taken on is an and, what added to the respect with to voters wanted act, no-fault the voters nothing.29 chose Moreover, the majority recognize unique fails to of referenda. As Justice RILEY in In re importance stated Governor, Message Executive 444 Mich from (1994): Michigan, political power “[a]ll

In the State of is inher- people. equal ent Government is instituted for their benefit, 1963, 1, security protection.” § Const art 1. In republican accordance with this fundamental maxim of government, people power “[t]he reserve to themselves laws, propose reject laws and to enact and called the initiative, power approve reject and the laws enacted legislature, 1963, called the referendum.” Const art 2, power necessary legislative § 9. Such is to check the government branch power when it either abuses its See, constituency. e.g., heed the fails to wishes its Kuhn Dep’t Treasury, 378, v Mich [183 NW2d my opinion, claiming The mischaracterizes I believe “Michigan rubber-stamp voters intended its courts all determi gross nations under Ante no-fault act....” at 176-177. This is a my my argument point. point overstatement of much narrower rejection essentially that the voters’ of 1993 PA which contained majority adopts today, same standard that indicates both that “medically that, adopt appropriate” voters did not want to standard and by inference, “reasonably necessary” “medically than lower standard appropriate.” MICH by Dissenting Opinion Hathaway, J. importance The of the referendum is so vital that power properly

“[n]o law as to which the of referendum has approved been invoked shall be effective thereafter unless by majority voting of the electors thereon at the next 1963, 2, general § election.” Const art 9.

Thus, the majority’s today decision is direct con- flict with will of the voters of state.

The pertinent part only of the statute the phrase uses “reasonably necessary” and specifies “injured must be for the person’s recovery, or earlier, rehabilitation.” As noted any if there is factual dispute about whether a “reasonably treatment nec- essary,” that dispute properly must be decided a jury. Rather than focusing factor, on one such as and verifiable medical evidence establishing efficacy of the procedure, a determination the jury could include an analysis number of factors. Such factors could include professionals’ medical conclusions regarding reasonable of a necessity procedure, lay persons’ conclusions regarding reasonable necessity procedure, of a support scientific for the effectiveness of a procedure, or possibly subjective even the belief of the plaintiff. point, however, up is that it is to the jury, case-by-case on a basis, to decide what is reasonable or unreasonable. Michigan’s Constitution parties affords right by jury. “[t]he of trial . . .”30This Court should not disregard the important role of fact-finding jury. This Court must respect no-fault act as it cur- rently written.

CONCLUSION Today’s decision rewrites the requirements for an pay insurer to allowable expenses under MCL 500.3107 1, § Const art 14. Krohn v Home-Owners Dissenting Opinion by J. Hathaway, majority no-fault act. The holds Michigan’s necessary” “reasonably this case was so, to the no-fault act that and, doing language adds in 1994. The by referendum rejected the determi by erroneously removing result reaches its “reasonably necessary” which are expenses nation of judicially Additionally, majority’s new jury. from the necessary” elevates “reasonably crafted definition of “reasonably is proving that treatment standard stringent one that more than MCL necessary” to 500.3107(1)(a) act apply I would the no-fault requires. written, I uphold jury’s finding would this case was “reason procedure performed plaintiff on and I hold that ably necessary,” would with entitled to reimbursement costs associated I procedure. Accordingly, dissent. 20) and (except CAVANAGH footnote MARILYN KELLY,JJ., HATHAWAY,J. concurred with

Case Details

Case Name: Kevin Krohn v. Home-Owners Ins Co

Court Name: Michigan Supreme Court

Date Published: Jul 29, 2011

Citation: 802 N.W.2d 281

Docket Number: Docket 140945

Court Abbreviation: Mich.