Michigan Court of Appeals; Docket #283862; Unpublished
Judges Fort Hood, Cavanaugh, and K.F. Kelly; 2-1 Opinion (Fort Hood dissenting); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
On July 29, 2011, the Michigan Supreme Court AFFIRMED the judgment of the Court of Appeals for different reasons; Link to MSC Summary
STATUTORY INDEXING:
Allowable Expenses for Medical Treatment [3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam opinion, the Court of Appeals reversed the trial court denial of directed verdict as to plaintiff’s claim that an experimental stem cell surgery performed in Portugal was an allowable expense that was “reasonable” and “necessary” within the meaning of MCL 500.3107(1)(a). In reversing the denial of directed verdict and finding in favor of the defendant, the Court of Appeals held that plaintiff’s treating physician expert witness did not testify that the experimental stem cell surgery was either reasonable or necessary, and plaintiff had failed to demonstrate the scientific reliability of the experimental surgery before seeking to admit any testimony regarding the procedure.
Plaintiff sustained a spinal cord injury in a head-on accident in 2001. As a consequence of his injuries, plaintiff had a loss of sensation below his mid chest level of injury. Plaintiff learned of an experimental medical procedure performed in Portugal which involved surgery and transplantation of stem cells to the injury site. This particular procedure was not approved by the United States Food and Drug Administration (FDA) and could not lawfully be performed in the United States. Further, there was no pending application for FDA approval of the procedure or to begin a controlled study. After plaintiff’s health care provider denied the request for coverage of this treatment, plaintiff sought coverage from his no-fault automobile insurer who denied payment for the surgery based upon the fact that it was an experimental procedure lacking FDA approval and was unlawful to be performed in the United States. Plaintiff elected to pay for the surgery himself and seek reimbursement.
After proofs were presented at trial, the defendant moved for a directed verdict which the trial court denied.
In reversing the trial court denial of directed verdict, the Court of Appeals held that although the question of whether an expense is reasonably necessary is generally one of fact for the jury, in some cases it can be a question of law. In this case, because the question of whether this procedure was reasonably, it involved medical judgment requiring expert testimony. Relying on the previous decision in Spect Imaging, Inc. v Allstate Insurance Company, 246 Mich App 568 (2001), the Court of Appeals held that the party offering the evidence bears the burden of demonstrating its acceptance in the medical community. Under MRE 702, the trial court is required to determine the evidentiary reliability or trustworthiness of the facts and data underlying an expert’s testimony before the testimony may be admitted. Such testimony must be supported by appropriate objective and independent validation based on what is known, e.g., scientific and medical literature.
In this case, plaintiff’s own treating physician failed to testify that the procedure was either reasonable or necessary. Rather, he testified that the procedure was not regarded as necessary in his field, but rather is an understandable “personal choice.” Although the plaintiff apparently improved following the surgery, his physician testified that he would not be able to determine whether any improvement was due to the surgery or the aggressive physical therapy he prescribed for the plaintiff, or a combination of both.
In addition to the lack of supportive testimony from plaintiff’s treating physician, the court also held that the plaintiff had not established that the surgery had any current acceptance as a reliable treatment method, even in Portugal. There have been no controlled studies, no Peer Review, no published research articles, or any follow-up studies.
Pursuant to the above, the court held that the trial court should have granted directed verdict because the evidence established that the surgery was not prescribed by any licensed medical professional, no medical professional testified that it was reasonably necessary, and that it has not been shown to be scientifically reliable such that it has gained general acceptance within the medical community.
Based upon its conclusions with regard to the issue of reasonable necessity, the court did not reach defendant’s additional argument that the treatment was not lawfully rendered.
