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Mad Science: How The Michigan Supreme Court Unreasonably Eliminated Coverage of Experimental Procedures

Under the State’s No‐Fault Act

ERIN HYSELL*

ABSTRACT

The State of Michigan’s No‐Fault Automobile Insurance Act is designed to provide adequate and prompt compensation for auto accident victims without regard to fault. The provision of the Act governing medical expenses is left uncapped, providing broad coverage to injured parties for the expenses they incur as a result of their accidents. However, the Michigan Supreme Court in Krohn v. Home‐Owners Insurance Company arbitrarily limits the expenses that may be covered under the Act by effectively removing experimental procedures outright.

The Michigan Supreme Court incorrectly decided the case of Krohn v. Home‐Owners Insurance Company and, in doing so, circumvented the policies of the state’s No‐Fault Auto Insurance Act. The court held that coverage of an experimental procedure under the Act is subject to a threshold standard and a procedure may be determined unreasonable and unnecessary as a matter of law. This holding ignores binding precedent interpreting the Act’s “reasonable necessity” standard and disregards the language of the Act. In addition, the standard the court creates is rendered unworkable because the court immediately contradicts itself in its application to the facts of Krohn. Ultimately, the court’s decision runs counter to the goals of the Act meant to benefit auto accident victims and does so at the expense of the motorists most in need of the Act’s protections.

* Candidate for Juris Doctor, New England Law | Boston (2013). B.A., Marketing, Michigan

State University (2010). I would like to thank my family and friends for their support

throughout the writing process, and I would also like to thank the Law Review staff for their

assistance in editing this Comment.


244 New England Law Rev iew v. 47 | 243

INTRODUCTION

n December 11, 2001, Kevin Krohn was hit head‐on by a van while riding his motorcycle; he suffered a severe spinal cord injury and was paralyzed from the waist down.1 Emergency surgeries proved

futile, and no amount of physical therapy could return feeling to his lower body, leaving Kevin in need of assistance for what had once been simple tasks.2 When Kevin was told about a surgery that could help him, his hope returned.3 He met with a doctor who explained a break‐through stem cell procedure being performed at a government hospital in Portugal.4 After submitting to extensive testing, Kevin traveled to Portugal to undergo the surgery and returned home with immediate improvements.5

Before leaving for the surgery, Kevin notified his automobile insurance provider, Home‐Owners Insurance Company (“Home‐Owners”), that he would be undergoing the procedure.6 Under Michigan’s No‐Fault Automobile Insurance Act7 an auto insurance provider must compensate an injured party for any reasonable expenses incurred from injuries in an auto accident without regard to fault.8 Despite this provision of the Act, Kevin’s provider denied his claim.9

After returning from Portugal, Kevin sued Home‐Owners to recover his surgical expenses, and a jury agreed that the procedure was reasonable and necessary under the No‐Fault Auto Insurance Act.10 Oddly, the same doctor who told Kevin about the surgery’s potential and screened him for the procedure served as a defense expert.11 When the case reached the Supreme Court of Michigan, the court used the doctor’s statements to hold that the procedure could not possibly provide a chance at improvement and ignored the evidence of the procedure’s success.12

In reversing the trial court’s decision, the court not only denied Kevin his benefits under the No‐Fault Act but also created a precedent where no

1 Krohn v. Home‐Owners Ins. Co., 802 N.W.2d 281, 285 (Mich. 2011). 2 Id. 3 Brief of Plaintiff‐Appellant at 4, Krohn, 802 N.W.2d 281 (No. 140945), 2010 WL 6351954 at *4. 4 Id. at 9. 5 Krohn, 802 N.W.2d at 286. 6 Id. 7 See MICH. COMP. LAWS §§ 500.3101‐.500.3179 (2002). 8 §§ 500.3105(1)‐(2), .3107(1)(a). 9 Krohn, 802 N.W.2d at 286. 10 Id. at 286‐87. 11 See id. at 295‐96. 12 See id. at 295.

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2012 Mad Science 245

experimental surgeries or treatments will be covered in the future.13 Automobile accident victims with the most severe injuries who cannot pay for surgery out‐of‐pocket are being denied any chance at recovery.14 The State of Michigan’s status as a model for no‐fault automobile insurance systems—the state with the most inclusive no‐fault coverage—has been compromised at the expense of the people who need it most.15

This Comment argues that Krohn v. Home‐Owners Insurance Company16 was incorrectly decided, because the Supreme Court of Michigan inappropriately took the determination of reasonableness and necessity away from the jury by creating a vague threshold test for experimental procedures. This Comment asserts that the court ignored binding precedent and the language of Michigan’s No‐Fault Auto Insurance Act in applying an unreasonable standard to Kevin Krohn’s procedure. In addition, the decision fails to further the Act’s goal of confronting the inequality and inconsistency of a tort liability system for automobile accidents. The decision arbitrarily limits automobile accident victims’ access to benefits under the Act by creating a misguided standard that no experimental procedure can meet.

Part I.A of this Comment provides background on no‐fault automobile insurance systems, and Part I.B explains the development of Michigan’s No‐Fault Automobile Insurance Act. Part II outlines the facts and the decision in Krohn. Part III.A discusses how the court’s decision in Krohn departed from binding Michigan Supreme Court precedent. Part III.B explains that the court ignored the previously established test for removing issues from the jury contained in a provision of the Act. Part IV.A shows that the Krohn decision effectively eliminates all experimental procedures from coverage under the Act. Finally, Part IV.B discusses how the court in Krohn went against the Michigan legislature’s purposes in implementing the No‐Fault Act, because the decision fosters inequality and inconsistency at the expense of the most severely injured automobile accident victims.

I. Background

A. Legislative No‐Fault Automobile Insurance

The term “no‐fault” in the context of automobile insurance refers to a legal system by which a person injured in an automobile accident has a right to recover economic losses such as medical expenses and lost wages,

13 See infra Part 0, 0. 14 See infra Part 0. 15 See infra Part 0. 16 802 N.W.2d 281 (Mich. 2011).



regardless of whether he or she was at fault in causing the accident.17 No‐fault automobile insurance represents a first‐party system under which the insured18 seeks compensation from his or her own provider—as opposed to the third‐party system seen with traditional insurance.19 No‐fault insurance involves either a legislatively authorized or mandated form of automobile insurance intended to provide benefits while limiting or prohibiting the insured’s ability to bring suits in tort.20 Legislative no‐fault automobile insurance systems are designed to: provide adequate and prompt benefits to injured parties; reduce the number of minor tort claims relating to auto accidents; and eliminate the inefficiencies and inequalities of the tort system.21 Today, twelve states have no‐fault automobile insurance law.22 Ten states utilize “add‐on” no‐fault insurance, through which an insured person may receive first‐party benefits but avoid the limitations on their right to sue in tort.23

B. Michigan’s No‐Fault Automobile Insurance Act

Michigan’s no‐fault auto insurance plan is often recognized as one of the most comprehensive in the United States.24 The development of this system was largely in line with the growth of the auto industry through the 1900s.25 As the number of vehicles on the state’s roadways increased, logically so did the number of automobile accidents.26 Prior to the passage

17 ROBERT H. JOOST, AUTOMOBILE INSURANCE AND NO‐FAULT LAW § 1:1 (2d ed. 2002). 18 The “insured” refers to the person(s) covered by insurance. BLACK’S LAW DICTIONARY 870

(9th ed. 2009). 19 THOMAS F. BURKE, LAWYERS, LAWSUITS, AND LEGAL RIGHTS: THE BATTLE OVER LITIGATION IN

AMERICAN SOCIETY 103 (2002). In a third‐party system, the injured party seeks compensation

from the insurer of the person who caused the injury. Id. 20 JOOST, supra note 17. 21 See Thomas C. Jones, No‐Fault Automobile Insurance in Michigan: A Preliminary Study, in NO‐

FAULT AUTOMOBILE INSURANCE IN ACTION: THE EXPERIENCES IN MASSACHUSETTS, FLORIDA,

DELAWARE, AND MICHIGAN 379, 381 (Oceana Publications 1977) (examining the success of

Michigan’s No‐Fault Act three years after its enactment). 22 Cassandra R. Cole et al., A Review of the Current and Historical No‐Fault Environment, 23‐1 J.

OF INS. REGULATION 3, 3 (2004). Florida, Michigan, New Jersey, New York, and Pennsylvania

use verbal thresholds for allowing tort liability. Id. Hawaii, Kansas, Kentucky, Massachusetts,

Minnesota, North Dakota, and Utah use monetary thresholds. Id. 23 Id. Arkansas, Delaware, Maryland, New Hampshire, Oregon, South Dakota, Texas, Virginia,

Washington, and Wisconsin offer add‐on no‐fault. Id. 24 See Jones, supra note 21, at 379‐82; see also BURKE, supra note 19, at 108 (explaining that

Michigan’s no‐fault system constitutes the most radical departure from traditional tort

liability). 25 See James T. Mellon & David A. Kowalski, The Foundations and Enactment of Michigan

Automobile No‐Fault Insurance, 87 U. DET. MERCY L. REV. 653, 656, 673 (2010). 26 See Mich. Office of Highway Safety Planning, 1940‐2009 Michigan Crash Overview, MICHIGAN



of the No‐Fault Auto Insurance Act of 1972,27 automobile accidents were subject to the traditional tort system.28 This included the doctrine of contributory negligence.29 Drawn‐out litigation resulting from establishing fault not only served to back up the courts, but it also left injured parties without compensation while they waited—sometimes years—for their trials to commence.30 At trial, awards were often inadequate and inconsistent.31 The issue of uninsured and judgment‐proof motorists also limited recovery for automobile accident victims.32 The Michigan legislature eventually adopted a plan to resolve some of the legal, economic, and practical issues being created by auto accidents.33

The No‐Fault Auto Insurance Act set up a mandatory insurance scheme, which provides compensation for injuries sustained from an automobile accident without regard to fault.34 The Act is codified in the Michigan Compiled Laws as sections 500.3101‐500.3179.35 Michigan’s No‐Fault Insurance Act makes three types of insurance mandatory: personal injury protection (“PIP”), property protection insurance (“PPI”), and residual liability insurance.36

PIP benefits are payable for medical expenses, three years of lost wages, and up to twenty dollars per day for replacement service

TRAFFIC CRASH FACTS, http://www.michigantrafficcrashfacts.org/doc/2009/4009_Overview

.pdf (last visited July 7, 2012). 27 MICH. COMP. LAWS §§ 500.3101.3179 (2002). 28 Mellon & Kowalski, supra note 25, at 656. 29 8 AM. JUR. 2D Automobiles and Highway Traffic § 947 (2007) (“[T]he doctrine of contributory

negligence precludes recovery by one injured in a motor vehicle accident in an action based

upon the defendant’s negligence, where there is any fault on the part of the injured person,

even though small in comparison with that of the defendant, if the negligence of the injured

person contributed proximately to the occurrence of the accident . . . .”); see, e.g., Desmarais v.

Myefski, 174 N.W.2d 174, 179 (Mich. Ct. App. 1969). 30 See COMM. TO STUDY COMP. FOR AUTO. ACCIDENTS, REPORT BY THE COMMITTEE TO STUDY

COMPENSATION FOR AUTOMOBILE ACCIDENTS TO THE COLUMBIA UNIVERSITY COUNCIL FOR

RESEARCH IN THE SOCIAL SCIENCES 36, 43 & n.24 (1932). At the time of the Columbia Study,

automobile accident trials represented 34% of civil trials in Detroit. Id. at 43 n.24. 31 See 7 AM. JUR. 2D Automobile Insurance § 31 (2007); see also H. Laurence Ross, A Review Article

on Basic Protection for the Traffic Victim, 34 J. OF RISK & INS. 647,648 (1967). 32 ROBERT E. KEETON & JEFFREY O’CONNELL, BASIC PROTECTION FOR THE TRAFFIC VICTIM: A

BLUEPRINT FOR REFORMING AUTOMOBILE INSURANCE 1, 28 (1965). 33 Mellon & Kowalski, supra note 25, at 653‐55. 34 See MICH. COMP. LAWS §§ 500.3101‐.3179 (2002); Claudia Maria Darmofal, Comment, The

Dismantling of Michigan’s No‐Fault Auto Insurance Law by House Bill 4156: The Permanent Scaling

Back of Auto Insurance Coverage in Michigan for the Promise of a Temporary Rate Reduction, 71 U.

Det. Mercy L. Rev. 597, 597 & n.1, 599 (1994). 35 § 500.3101(1). 36 Id. § 500.3101(1).



expenses.37 The medical expense allowance is uncapped and covers “expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.”38 In exchange for this broad coverage, the Act limits tort liability based on a verbal threshold; motorists may only sue if the accident resulted in serious injury or death.39

C. Statutory Interpretation of the PIP Benefits Provision

1. Interpreting “Reasonably Necessary”

Despite being considered a model for no‐fault auto insurance, the Act has regularly been the subject of litigation since its enactment.40 The Act’s broad language charges courts with executing the legislature’s goals.41 A wide range of expenses have spurred litigation under the PIP provision that governs what products, services, and accommodations may be considered “reasonably necessary . . . for an injured person’s care, recovery, or rehabilitation.”42 The possible products, services, and accommodations are endless when one considers the scope of potential medical needs that can result from an automobile accident.43 While health insurance plans generally contain explicit language on the coverage of experimental procedures, the No‐Fault Automobile Insurance Act does

37 Id. § 500.3107(1)(a)‐(c). 38 Id. § 500.3107(1)(a) (emphasis added). 39 See id. § 500.3135(1) (“A person remains subject to tort liability for noneconomic loss . . . only

if the injured person has suffered death, serious impairment of body function, or permanent

serious disfigurement.”). The issue of what constitutes a “serious” injury is often a subject of

litigation. See, e.g., McCormick v. Carrier, 795 N.W.2d 517, 537 (Mich. 2010) (explaining that

the serious impairment analysis is inherently fact‐specific and must be conducted case‐by‐

case). 40 Claudia Maria Darmofal, Comment, The Dismantling of Michigan’s No‐Fault Auto Insurance

Law by House Bill 4156: The Permanent Scaling Back of Auto Insurance Coverage in Michigan for the

Promise of a Temporary Rate Reduction, 71 U. DET. MERCY L. REV. 597, 608 (1994); James T.

Mellon, Insurance Law, 50 WAYNE L. REV. 671, 671‐72 (2004). 41 Mellon, supra note 40. 42 See Hamilton v. AAA Michigan, 639 N.W.2d 837, 843 & nn.2‐3 (Mich. Ct. App. 2001) (listing

expenses the court has previously found to be reasonable or unreasonable to form a

framework by which to consider the expense at issue). 43 See, e.g., Hoover v. Mich. Mut. Ins. Co., 761 N.W.2d 801, 804‐05 (Mich. Ct. App. 2008)

(discussing whether elevator maintenance, a back‐up generator, a television monitoring

system, a dumpster, and a twenty year home cleaning allowance were reasonably necessary

expenses); Hamilton, 639 N.W.2d at 839 (holding that an in‐patient telephone and television

access charge may be reasonably necessary expenses); Spect Imaging, Inc. v. Allstate Ins. Co.,

633 N.W.2d 461, 464 (Mich. Ct. App. 2001) (discussing whether a novel brain scan imaging

procedure is a reasonably necessary expense).



not.44 Thus, experimental surgeries and treatments are subject to the same scrutiny as any other expenses under the Act’s PIP provision.45

Whether an expense is reasonably necessary, for purposes of the PIP provision, is generally considered a question of fact for the jury, and the insured has the burden of proof on the matter.46 The Michigan Supreme Court in Nasser v. Auto Club Insurance Association held:

While the question whether expenses are reasonable and reasonably necessary is generally one of fact for the jury . . . it may in some cases be possible for the court to decide the question of the reasonableness or necessity of particular expenses as a matter of law . . . . Thus, if it could be ‘said with certainty’ that an expense was both reasonable and necessary, the court could make the decision as a matter of law.47

In Nasser, the plaintiff spent a total of fifty days hospitalized following a minor auto accident in a parking lot.48 After applying for his no‐fault benefits, his insurer’s doctor determined that much of the hospital time and testing was unnecessary.49 When his no‐fault carrier subsequently refused to pay any benefits, the plaintiff initiated a breach of contract suit.50

The Michigan Supreme Court held that summary judgment was inappropriate in the case.51 The court found that a factual dispute existed regarding whether many of the expenses were reasonable charges for reasonably necessary services.52 The court further noted that the trial court could have granted partial summary judgment for the plaintiff for those expenses not in question, such as his initial hospital visit directly after the accident.53 Thus, the Nasser decision limits decisions as a matter of law on the question of reasonable necessity to cases where the plaintiff has positively proved that an expense was reasonable and necessary.54

44 Compare Jennifer Belk, Undefined Experimental Treatment Exclusions in Health Insurance

Contracts: A Proposal for Judicial Response, 66 WASH. L. REV. 809, 809 (1991) (“Health insurance

contracts often exclude coverage for experimental treatments.”), with MICH. COMP. LAWS §

500.3107(1)(a) (2002) (containing no language on the topic of experimental treatments). 45 § 500.3107(1)(a). 46 Nasser v. Auto Club Ins. Ass’n, 457 N.W.2d 637, 645, 647 (Mich. 1990); Nelson v. Detroit

Auto. Inter‐Ins. Exch., 359 N.W.2d 536, 538 (Mich. Ct. App. 1984). 47 Id. at 647. 48 Id. at 640. 49 Id. 50 Id. 51 Id. at 646. 52 Nasser, 457 N.W.2d at 647. 53 Id. 54 See Healing Place, Ltd. v. Farm Bureau Mut. Ins. Co. of Mich., No. 272438, 2007 WL 778504,

at *4 (Mich. Ct. App. Mar. 15, 2007).



Michigan courts have since held that the jury almost always decides this question; only when it is clear than an expense is reasonably necessary may the judge overtake the jury’s role.55 However, the court in Krohn v. Home‐Owners Insurance Company went against this well‐established precedent.56

Michigan’s Legislature has answered the question on matter‐of‐law decisions regarding a different provision of the No‐Fault Act.57 Public Act 222 of 1995 amended Section 3135(2)(a) to place limits on when a judge may determine that an injured person has suffered serious impairment of body function as a matter of law.58 The amended provision allows a judge to make such a determination only in two enumerated circumstances: (1) if there is no factual dispute concerning the nature and extent of a person’s injuries; or (2) if a dispute exists, it is not material to the determination.59 Even then, the Legislature provided an exception for closed‐head injuries, providing that a genuine question of fact for the jury still exists if a licensed physician who regularly treats closed‐head injuries testifies that there may be a serious neurological injury.60 The PIP benefits provision has not been similarly amended.61

2. Interpreting “For an Injured Person’s Care, Recovery, or Rehabilitation”

The Michigan Supreme Court has defined “care, recovery, or rehabilitation” under the PIP provision.62 Griffith addressed whether everyday food expenses were necessary for the plaintiff’s “care.”63 The court answered by defining each of the three words used in the statute.64

55 See Wilcox v. State Farm Mut. Auto. Ins. Co., 791 N.W.2d 723, 723 (Mich. 2010) (citing Nasser

to explain that a question of reasonable necessity is generally one of fact for the jury); see also

Healing Place, Ltd., No. 272438, 2007 WL 778504, at *4 (“It does not follow that the trial court is

free to decide the issue as a matter of law where a plaintiff has failed to prove reasonableness,

or where a defendant has characterized an alternative as reasonable. Where such is the case, a

trier of fact must decide what is reasonable.”); Spect Imaging, Inc. v. Allstate Ins. Co., 633

N.W.2d 461, 466‐67 (Mich. Ct. App. 2001) (holding that conflicting expert testimony created an

issue of fact for the jury on whether a novel brain scan imaging procedure is reasonably

necessary). 56 See infra Part 0. 57 See MICH. COMP. LAWS § 500.3135(2)(a) (2002). 58 See George T. Sinas & Robert M. Ransom, The 1995 No‐Fault Tort Threshold: A Statutory

Hybrid, 76 MICH. B.J. 76, 80 (1997). 59 § 500.3135(2)(a)(i)‐(ii). 60 Id. § 500.3135(2)(a)(ii). 61 See MICH. COMP. LAWS § 500.3107 (2002). 62 Griffith v. State Farm Mut. Auto. Ins. Co., 697 N.W.2d 895, 902 (Mich. 2005). 63 Id. 64 Id. at 902‐03.



Based on the court’s decision, “recovery” includes expenses that are “necessary to return a person to his post‐injury health,” and “rehabilitation” encompasses those expenses that are “necessary to bring the person back to a condition of productive activity.”65 Expenses are considered necessary for an injured person’s “care” when they are needed as a result of the accident, even though such care will not restore a person to his pre‐injury state.66

II. Krohn v. Home‐Owners Insurance Company

In Krohn v. Home‐Owners Insurance Company, the Michigan Supreme Court addressed whether an experimental surgery could be considered reasonably necessary for a plaintiff’s care, recovery, or rehabilitation under the PIP provision of the No‐Fault Auto Insurance Act.67 The insurance carrier appealed after a jury returned a verdict in favor of the plaintiff, finding the procedure reasonably necessary.68 The court of appeals reversed, holding that the trial court ought to have granted a directed verdict in favor the insurance company.69 The Michigan Supreme Court affirmed the court of appeals decision.70 The Court decided that: (1) the initial determination of reasonable necessity was an objective question of law; (2) that an experimental procedure must be shown to be “efficacious” to be considered reasonably necessary; (3) and that the plaintiff’s procedure did not meet this threshold under the PIP provision of the Act.71

A. Facts

In 2001, Kevin Krohn was paralyzed after being hit head‐on by a van while riding his motorcycle.72 Despite several surgeries immediately following the accident and intensive physical therapy, he could not regain any sensation in his lower body.73 Krohn researched treatment options and learned of a procedure performed in Lisbon, Portugal through a patient who had benefited from the surgery.74 A team of neurology specialists at

65 Id. at 903 n.12. 66 Id. A prosthetic leg is an example of an expense that goes to an injured person’s “care,”

since the use of the prosthetic device would be necessary after an accident but would not

return the person to his pre‐injury state. Id. 67 Krohn v. Home‐Owners Ins. Co., 802 N.W.2d 281, 284‐85 (Mich. 2011). 68 Id. at 287. 69 Id. at 287‐88. 70 Id. at 285 & n.1. 71 Id. at 301. 72 Id. at 285. 73 Brief of Plaintiff‐Appellant, supra note 3, at 4. 74 Krohn v. Home‐Owners Ins. Co., No. 283862, 2010 WL 293004, at *5 (Mich. Ct. App. Jan. 26,



Lisbon’s Hospital Egas Moniz developed a technique that involved using the patient’s own stem cells to re‐grow spinal cord nerves at the site of the injury.75 The surgery was regulated and fully approved in Portugal and reviewed by the European equivalent of the FDA, the Geneva Protocol.76 One of the specialists involved, Dr. Carl Lima, a neuropathologist licensed in Portugal, testified at trial that the procedure had been performed 110 times on patients with chronic spinal chord injury since 2001 and the majority of patients exhibited improvement following surgery.77

Krohn submitted an application to be considered for the procedure to the Spinal Cord Injury Recovery Center (“SCIR”) at the Rehabilitation Institute of Michigan, which serves as a liaison.78 Dr. Hinderer, the director of the SCIR, interviewed Krohn and explained the benefits and drawbacks of the procedure, including the fact that the FDA had not reviewed the procedure.79 Dr. Hinderer was considered very knowledgeable about the surgery, having visited Lisbon and witnessed the procedure himself.80 After choosing to undergo the procedure, Krohn had several tests done at the SCIR before traveling to Portugal.81

Prior to his trip, Krohn contacted his automobile insurance carrier, Home‐Owners Insurance Company, requesting coverage for his surgical expenses.82 Home‐Owners refused to cover the procedure, claiming that it did not qualify under the No‐Fault Act.83 Krohn traveled to Portugal and underwent surgery in 2005.84 He testified at trial that he noticed immediate improvement following his surgery: he became able to move his legs, crawl, and control his bowel and bladder function.85 Having paid for the surgical and travel expenses out‐of‐pocket, Krohn sought reimbursement from Home‐Owners, which refused.86 The lawsuit at issue followed.87

2010) (Fort Hood, J., dissenting). 75 Brief of Plaintiff‐Appellant, supra note 3, at 4. 76 Id. at 6‐7 (internal citation omitted). 77 Krohn, 802 N.W.2d at 302 (Hathaway, J., dissenting) (internal citation omitted). 78 Krohn, 2010 WL 293004, at *6. 79 Krohn, 802 N.W.2d at 285. 80 Brief of Plaintiff‐Appellant, supra note 3, at 6. 81 Id. at 9. 82 Krohn, 802 N.W.2d at 286. 83 Brief of Plaintiff‐Appellant, supra note 3, at 10. 84 Krohn, 802 N.W.2d at 286. 85 Id. 86 Brief of Plaintiff‐Appellant, supra note 3, at 10. 87 Id.



B. Procedural History

1. Lower Court Decisions

Kevin Krohn sued Home‐Owners Insurance Company for the $51,412.85 in expenses he incurred by traveling to Portugal and undergoing the surgical procedure.88 His suit was premised on the PIP provision of the No‐Fault Auto Insurance Act, which allows reimbursement for expenses incurred for “reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation[]” following an automobile accident.89 Both Dr. Hinderer and Dr. Lima testified about the procedure.90 Home‐Owners moved for a directed verdict, arguing that experimental surgeries are not “reasonably necessary” as a matter of law.91 The trial court denied the motion, holding that the issue was a question of fact.92 The jury returned a verdict in favor of Krohn, awarding him the cost of his expenses, including interest.93

The court of appeals reversed and held that Krohn was required to show that the procedure had gained general acceptance within the medical community.94 Because Krohn lacked this kind of proof, the court of appeals found that a directed verdict in favor of Home‐Owners should have been granted.95 The dissent argued that whether the procedure was “reasonably necessary” was a question of fact, submittable to the jury.96

C. The Michigan Supreme Court’s Opinion

The Michigan Supreme Court affirmed the judgment of the court of appeals but cited different reasons for its decision.97 The court departed from the court of appeals’s holding, requiring the plaintiff to show that the procedure had gained general acceptance within the medical community.98 The court also stated that it must review the trial court’s decision de novo, as issues of statutory interpretation are questions of law.99

The majority first concluded that the provision authorizing benefits for

88 Id. 89 MICH. COMP. LAWS § 500.3107(a) (2002); see Krohn, 802 N.W.2d at 284. 90 Krohn, 802 N.W.2d at 286‐87. 91 Id. at 287. 92 Id. 93 Id. 94 Id. at 287‐88. 95 Id. at 288. 96 Krohn, 802 N.W.2d at 288. 97 Id. at 285 & n.1. 98 Id. at 294. 99 Id. at 288.



“reasonably necessary” expenses for the injured party must be assessed using an objective standard.100 Having made this conclusion, the court went on to hold that an experimental surgery could not be considered reasonably necessary unless it was shown to be “efficacious.”101 It stated that this must be determined based on “objective and verifiable medical evidence” but declined to further define this requirement.102 This standard, was termed a “minimal threshold of efficacy,” that must be met for the issue of reasonableness to be submitted to the jury.103 Accordingly, the court found that unless expert testimony is presented showing that an experimental surgery has a reasonable chance of being “efficacious,” it will be summarily barred from coverage under the PIP provision of the No‐Fault Act.104

The court next utilized its newly instituted efficacy threshold to find that Krohn’s procedure was not reasonably necessary for his care, recovery, or rehabilitation.105 In this phase of the analysis, the court relied on Dr. Hinderer’s statement that the procedure was not standard practice and disregarded Dr. Lima’s testimony that the procedure afforded Krohn the opportunity to recover function below his injury site.106 It classified Dr. Lima’s testimony as “pure speculation or conjecture.”107 Ultimately ruling in favor of Home‐Owners, the court held that Krohn’s surgery did not qualify for purposes of surviving summary judgment.108

D. Dissenting Opinion

Justice Hathaway, joined by two other justices, cited three major errors by the majority in Krohn.109 First, the dissent stated that the majority inappropriately removed the determination of “reasonable necessity” from the jury.110 Second, the dissent charged the majority decision with changing the Act’s language to heighten the standard above what the PIP provision

100 Id. at 290‐91. 101 Id. at 293. 102 Krohn, 802 N.W.2d at 294. 103 Id. at 293. 104 Id. at 293‐94. 105 Id. at 295. 106 Id. at 296. 107 Id. (internal quotations omitted) (internal citation omitted) 108 Krohn, 802 N.W.2d at 301. 109 Id. at 311 (Hathaway, J., dissenting). Justice Cavanagh concurred in all but footnote twenty

of the dissent, which suggested that the result of Krohn may affect the term “reasonably

necessary” as it pertains to all Michigan statutes. Id. at 306 n.20, 311. 110 Id. at 301.



of the Act required.111 Finally the dissent stated that the majority’s decision nullified the will of Michigan voters who rejected an amendment to the No‐Fault Act that would have incorporated a “medically necessary” standard.112

ANALYSIS

I. The Michigan Supreme Court Incorrectly Took the Decision of Reasonable Necessity Under the PIP Provision of the No‐Fault Act Away from the Jury.

A. The Court Incorrectly Applied Binding Precedent Interpreting the Act to Hold that the Question of “Reasonable Necessity” Could Be Made as a Matter of Law.

The court misconstrued binding precedent in the State of Michigan in order to remove the determination of “reasonable necessity” from the jury.113 The court stated that its decision was consistent with its holding in Nasser v. Auto Club Insurance Association;114 however, Nasser in fact lends no support to the Krohn decision.115 The Krohn majority relied on Nasser’s holding:

[I]t may in some cases be possible for the court to decide the question of the reasonableness or necessity of particular expenses as a matter of law . . . . Thus, if it could be ‘said with certainty’ that an expense was both reasonable and necessary, the court could make the decision as a matter of law.116

The court in Krohn mischaracterized this holding by taking the “matter‐of‐law” language out of context and conveniently excluding the expenses to which Nasser was referring in its support for judicial determinations—those that were certainly reasonable.117 The court in Nasser did not premise its decision on the plaintiff’s subjective belief that all of his hospital expenses were reasonably incurred, as the Krohn court suggested;118 rather, Nasser recognized that blatantly reasonable expenses

111 Id. 112 Id. at 308. 113 See Krohn, 802 N.W.2d at 289‐90; Nasser v. Auto Club Ins. Ass’n, 457 N.W.2d 637, 647

(Mich. 1990). 114 457 N.W.2d 637 (Mich. 1990). 115 Contra Krohn, 802 N.W.2d at 289‐90. 116 Nasser, 457 N.W.2d at 647. 117 See Krohn, 802 N.W.2d at 289‐90 (limiting the Nasser quotation to the portion stating that “it

may in some cases be possible for the court to decide the question . . . as a matter of law”). 118 Id. at 290.



(e.g., an immediate visit to a doctor following a car accident) should be separated from those expenses still subject to factual disputes.119

The majority in Krohn took the idea that reasonable necessity may in rare instances be decided as a matter of law as an opportunity to extend such decisions to the PIP provision of the Act outright.120 While expenses may be allowed as a matter of law when it can be “said with certainty” that they are reasonably necessary, it does not logically follow that expenses can be deemed “not reasonably necessary” in the same way.121

The court in Krohn conflated the idea that reasonable necessity cannot be based on an injured person’s perception of his needs with the idea that the court is responsible for determining what is “reasonably necessary care” despite the existence of a factual dispute.122 In doing so, the Krohn court held that the judge, rather than the jury, may make the determination by factoring in a “minimum.”123 While, the court purported to make this finding in line with binding precedent, analysis of the Michigan Supreme Court’s own prior decision does not support the Krohn majority’s conclusion.124 Instead, the court’s selective application of language contained in precedent served as a thinly veiled excuse to inappropriately remove from the jury what was clearly a factual dispute.125

B. The Court’s Newly‐Created Standard Is Inconsistent with the Language on Matter‐of‐Law Decisions Contained in Another Provision of the No‐Fault Automobile Insurance Act.

Had the court looked elsewhere in the No‐Fault Act for guidance in determining whether an issue is a matter of law, Dr. Lima’s support of the procedure would have—by itself—raised a factual question submittable to the jury.126 A judicially created threshold standard in the PIP provision is inappropriate, considering the fact that the Legislature explicitly limits such a standard in another provision.127 The absence of matter‐of‐law

119 See Nasser, 457 N.W.2d at 647. 120 See Krohn, 802 N.W.2d at 290; Nasser, 457 N.W.2d at 647. 121 Healing Place, Ltd. v. Farm Bureau Mut. Ins. Co. of Mich., No. 272438, 2007 WL 778504, at

*4 (Mich. Ct. App. Mar. 15, 2007) (“It does not follow that the trial court is free to decide the

issue as a matter of law where a plaintiff has failed to prove reasonableness, or where a

defendant has characterized an alternative as reasonable.”). 122 See Krohn, 802 N.W.2d at 290‐91. 123 Id. at 293‐94. 124 See supra Part 0. 125 See Krohn, 802 N.W.2d at 307 (Hathaway, J., dissenting). 126 See MICH. COMP. LAWS § 500.3135(2)(a) (2002); Farmers Ins. Exch. V. Farm Bureau Ins. Co.,

724 N.W.2d 485, 491 (Mich. Ct. App. 2006) (“Terms contained in the no‐fault insurance act

must be read in the context of the legislative history and of the act as a whole.”). 127 See People v. Borchard‐Ruhland, 597 N.W.2d 1, 5‐6 (Mich. 1999) (“Where the language of



language in the PIP provision—in light of the legislature’s limitation on judicial determinations elsewhere in the statute—should have served as a glaring disincentive for the court to favor matter‐of‐law decisions in No‐Fault litigation.128

The Act’s definition of “serious impairment of bodily function,” for purposes of meeting the tort threshold was amended in 1995 to explain when the court may decide the issue as a matter of law.129 Section 3135(2)(a) recognizes only two distinct situations under which the judge, rather than the jury, may deem an injury “serious”: (1) when no factual dispute exists concerning the person’s injuries; or (2) the factual dispute is not material in determining whether the person suffered a serious impairment of bodily function.130 By establishing only two circumstances under which the judge may deem an injury “serious,” the legislature demonstrates its support for the position repeatedly taken by the Michigan courts: factual disputes warrant a jury decision.131

Furthering this standpoint, the matter‐of‐law test for serious impairment of bodily function within the Act contains an exception for situations involving closed‐head injuries.132 If a licensed physician who regularly treats closed‐head injuries testifies that there may be serious neurological injury, a question of fact remains.133 Analogizing this to the PIP provision, it is clear that, as an expert in the field, Dr. Lima’s testimony on the reasonableness and the necessity of the procedure was enough to overcome any argument in favor of determination by the court.134

the statute is unambiguous, the plain meaning reflects the Legislature’s intent and this Court

applies the statute as written. Judicial construction under such circumstances is not

permitted.”) (internal citation omitted). 128 See § 500.3135(2)(a)(i)‐(ii); Bronson Methodist Hosp. v. Allstate Ins. Co., 779 N.W.2d 304,

309 (Mich. Ct. App. 2009), (quoting Carson City Hosp. v. Dep’t of Cmty. Health, 656 N.W.2d

366 (2002)) (“When the Legislature enacts laws, it is presumed to know the rules of statutory

construction and therefore its use or omission of language is generally presumed to be

intentional.”); Daniel R. Siefer & Mary T. Nemeth, Let’s Get Serious: A View of the Serious

Impairment Threshold from a Defense Perspective, 87 U. DET. MERCY L. REV. 683, 698‐99 (2010). 129 § 500.3135(2)(a). 130 § 500.3135(2). 131 Id.; see, e.g., Moss v. Pacquing, 455 N.W.2d 339, 342‐43 (Mich. Ct. App. 1990) (discussing the

“time honored precepts” that where a factual dispute exists, the question must be answered

by the jury). 132 § 500.3135(2)(a)(ii). 133 Id. 134 See Krohn v. Home‐Owners Ins. Co., 802 N.W.2d 281, 302 (Mich. 2011).



C. After Introducing Its New Standard, the Michigan Supreme Court Erroneously Held that Krohn’s Procedure Did Not Survive the Minimal Threshold for Purposes of Overcoming Summary Judgment in Favor of the Defendant.

Purporting to require a showing of a “reasonable chance that [the surgery] will be efficacious in the injured person’s care, recovery, or rehabilitation,” the court sets a threshold that it immediately abrogates.135 Based on the court’s vague definition of “efficacy,” Krohn’s surgery should have survived the minimum threshold, and the jury should have answered the question of whether the surgery was reasonably necessary.136 The court ignored Dr. Lima’s testimony on the procedure’s success and, more importantly, disregarded the fact that Krohn himself benefited from the procedure.137

In its repeated assertion that a showing of an experimental surgery’s efficacy must take place, the court stated: “[T]he insured must present evidence that the surgery may result in care, recovery, or rehabilitation. In other words, there must be evidence that the surgery is efficacious.”138 Despite its claim that this is only a “minimum threshold of efficacy” the court concluded that Dr. Lima’s testimony on the positive results exhibited by his patients in the past established only the “mere possibility of efficacy.”139 Creating further confusion, the court stated that “[p]resentation by an expert witness of . . . objective and verifiable evidence, even if opposed by several witnesses claiming the proposed medical treatment is not efficacious, is sufficient to sustain plaintiff’s burden.”140 The court conveniently sidestepped defining “objective and verifiable medical evidence” that would support a showing of efficacy; thus, the court’s finding that Dr. Lima’s testimony does not point to the surgery’s success was superficial.141

Binding precedent dictates that, under the Act’s PIP provision, an expense applies toward an injured person’s care if it is needed as the result of an automobile accident.142 Krohn underwent the surgery based on his

135 See id. at 293. 136 Cf. McCormick v. Carrier, 795 N.W.2d 517, 537‐38 (Mich. 2010) (explaining that the

legislature’s vague language generally warrants a factual finding by the jury under the No‐

Fault Act). 137 See Krohn, 802 N.W.2d at 287, 296‐97. 138 Id. at 293 (emphasis added). 139 Id. at 293, 296. 140 Id. at 300. 141 See id. at 300, 301. 142 Griffith v. State Farm Mut. Auto. Ins. Co., 697 N.W.2d 895, 903 & n.12 (Mich. 2005).



discussion with Dr. Hinderer and the evidence showing the surgery’s ability to help patients with similar spinal cord injuries.143 Following the surgery, Krohn gained movement in his lower body and became able to control his bladder and bowel functions.144 Dr. Lima and Dr. Hinderer, who were both involved in the advancement of the procedure in the medical community, testified at trial regarding the surgery in the abstract and as it applied to Krohn.145 Despite Dr. Lima’s assertion that the procedure constituted Krohn’s only means of gaining mobility below his injury site, the court determined that its standard of efficacy had not been met.146 It did so even after acknowledging that “Dr. Lima did indeed claim that the procedure was reasonably necessary if [the] plaintiff wanted the opportunity to recover some function below the injury site.”147

The court relied on select statements of Dr. Hinderer in an effort to downplay his role in the surgery at issue.148 In fact, Dr. Hinderer held a significant position at the SCIR facilitating access to the Portugal procedure for Americans with spinal cord injuries.149 Dr. Hinderer clearly found the procedure to be promising, but he was legally constrained in fully advocating for it because the procedure has not been submitted for testing within the United States.150 His involvement in assisting spinal cord injury patients in undergoing the Portugal procedure indicates that he could not have believed that the surgery provided no possibility for a beneficial result for these patients.151 As such, neither expert witness in the case advanced the position that the procedure was incapable of benefiting an injured person in Krohn’s position.152

143 Krohn, 802 N.W.2d at 286. 144 Krohn v. Home‐Owners Ins. Co., No. 283862, 2010 WL 293004, at *6 (Mich. Ct. App. Jan. 26,

2010) (Fort Hood, J., dissenting). 145 Krohn, 802 N.W.2d at 302 (Hathaway, J., dissenting). 146 Id. at 296‐97 (majority opinion). 147 Id. at 296. 148 Compare id. (quoting Dr. Hinderer as saying “it’s certainly not standard practice given its

experimental nature” and “we don’t know the outcomes yet because this is such a new

procedure.”) (internal quotations omitted), with id. at 304 (Hathaway, J., dissenting)

(explaining Dr. Hinderer’s significant involvement with the procedure). 149 See Carols Lima et al., Olfactory Mucosa Autografts in Human Spinal Cord Injury: A Pilot

Clinical Study, 29 J. SPINAL CORD MED. 191, 202 (2006), available at

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1864811/pdf/i1079‐0268‐29‐3‐191.pdf. The

“Acknowledgments” section of Dr. Lima’s study begins: “We thank Dr. Steve Hinderer for

help in the neurological evaluation of the patients . . . .” Id. 150 See Krohn, 802 N.W.2d at 304 (Hathaway, J., dissenting) (“More than a third of the patients

in the worldwide program were patients of Dr. Hinderer, which . . . suggests that Dr.

Hinderer does not doubt the effectiveness of the procedure.”). 151 Id. 152 See id. at 304‐05.



IV. The Court’s Decision Goes Against the Purpose of the No‐Fault Automobile Insurance Act Overall, Because It Creates Inconsistency and Inequality.

A. The Michigan Supreme Court’s Holding Creates a Vague Rule that Effectively Eliminates Experimental Procedures, Treatments, and Devices From Coverage Under the No‐Fault Automobile Insurance Act.

Courts are not meant to make medical determinations,153 yet the court in Krohn unnecessarily attempted to classify the medical treatments that may qualify for coverage under the No‐Fault Act.154 The court arbitrarily handpicked methods by which a procedure’s success may be shown under the guise of introducing examples.155 In doing so, the court severely hampered the ability for any cutting‐edge medical technology to qualify under the PIP provision of the No‐Fault Act.156 Ignoring the fact that the technology utilized in the surgery has received support within the medical community and that it has been approved by the European version of the FDA,157 the court’s requirement of “objective and verifiable medical evidence”—such as controlled studies subjected to peer review or debate in scholarly publications—effectively implements FDA procedure.158 The court’s capricious methods for establishing efficacy will deny opportunities to Michigan automobile accident victims with the most severe injuries.159

With Krohn serving as precedent, lower courts in Michigan will be forced to exclude experimental procedures under the Act.160 The court’s

153 See Melissa Wong, Coverage for Kidneys: The Intersection of Insurance and Organ

Transplantation, 16 CONN. INS. L.J. 535, 562 (2010) (“Courts [e]xhibit [b]iases and [l]ack

[s]cientific [e]xpertise to [m]ake [m]edical [d]eterminations.”). 154 See Krohn, 802 N.W.2d at 300. 155 See id. 156 See id. at 307 (Hathaway, J., dissenting) (“[T]he majority effectively asserts that it is

unreasonable . . . to have pursued the only procedure that could possibly prevent [Krohn]

from being a paraplegic for the rest of his life.”). 157 See supra Part 0; see, e.g., Juan C. Bartolomei & Charles A. Greer, Olfactory Ensheathing Cells:

Bridging the Gap in Spinal Cord Injury, 47 NEUROSURGERY 1057 (2000) (“It seems certain that

[ensheathing cells] will contribute to the establishment of new horizons in SCI research.”). 158 Compare Krohn, 802 N.W.2d at 296‐97 (presenting examples of showing efficacy through

comparison to FDA approval procedures), with Earl P. Steinberg et al., Insurance Coverage for

Experimental Technologies, HEALTH AFF., Winter 1995, at 143, 145 (1995) available at

http://content.healthaffiars.org/content/14/4/143 (“Because the FDA does not regulate surgical

or medical procedures, and because many diagnostic tests may be performed by clinical

laboratories without ever having been reviewed by the FDA, . . . insurers must make decisions

regarding coverage of some technologies in the absence of FDA approval.”). 159 See Krohn, 802 N.W.2d at 307 (Hathaway, J., dissenting). 160 See id. at 306; Mellon, supra note 40, at 672 (discussing the Michigan Supreme Court’s active



confused analysis cannot possibly serve as a guide for lower courts to follow considering its contradictory statements and hypocritical application of its own test.161 The court found that no evidence showed that the procedure could be beneficial, despite expert testimony on the surgery’s benefits.162 Michigan courts will be forced to read this to mean that expert testimony in support of a newly developed procedure—even supported by research—is patently excluded as a means of advancing a procedure’s efficacy.163 Attempts to show “efficacy” and determine what “objective and verifiable medical evidence” will suffice are rendered a product of guesswork on the part of injured parties.164

B. The Court’s Decision Does Not Further the Goals of the No‐Fault Automobile Insurance Act Because It Creates Inconsistency and Inequity for Michigan’s Insured.

The Michigan Supreme Court has long recognized the purpose of the No‐Fault Automobile Insurance Act—to provide victims of automobile accidents with “assured, adequate, and prompt reparation.”165 The court’s decision in Krohn takes away the assurance that Michigan drivers have in their no‐fault auto insurance system.166 The decision compromises injured persons’ security by jeopardizing compensation for post‐accident reasonable and necessary expenses.

The Michigan legislature developed the No‐Fault Automobile Insurance Act with an explicit intention of providing broad PIP benefits.167 The legislature recognized that not only are there many types of people who are injured because of automobile accidents, but that there are many types of injuries that occur, as well.168 Creating an exhaustive list of the possible injuries for which PIP benefits could apply would be nearly impossible.169 For this reason, the Act’s PIP language is left open so that it may reach as many of the potential expenses incurred by auto accident victims as possible.170 The Act encompasses “all reasonable charges incurred for reasonably necessary products, services and accommodations

role in shaping the state’s insurance law). 161 See supra Part 0. 162 Krohn, 802 N.W.2d at 296. 163 See id. at 307 (Hathaway, J., dissenting). 164 See id. at 300‐01 (majority opinion). 165 Shavers v. Kelly, 267 N.W.2d 72, 77 (Mich. 1978). 166 See supra Part 0. 167 Jones, supra note 21, at 379‐80. 168 See id. 169 See McCormick v. Carrier, 795 N.W.2d 517, 538. 170 See id.



for an injured person’s care, recovery, or rehabilitation.”171 In practice, the PIP provision’s inclusive language has long served its intended purpose; the Act has provided the flexibility necessary for the courts to speak to the individualized needs of auto accident victims when automobile insurers deny coverage.172 Because the Michigan legislature designed the Act to have a broad scope, the court’s effective elimination of an entire category of procedures and treatments is unjustifiable.173

Some motorists leave an automobile accident with a sore back, and some escape with a broken bone.174 These injuries are readily taken care of under the PIP provision of the No‐Fault Act through reimbursements for physical therapy and hospital bills.175 The motorists who most need the protection afforded by the No‐Fault Act are those with debilitating injuries: brain trauma, loss of limbs, or paralysis.176 Experimental procedures represent the cutting‐edge medical technologies that are working to improve the lives of people with serious injuries.177 If the court’s agenda is to control the amount of money involved in the No‐Fault system, as the appeals court has alluded, the decision is nevertheless misguided because it serves no such purpose.178 Denying access to these technologies does nothing to reduce the payout of automobile insurers: the costs incurred by severely injured parties will, instead, be reflected in their continued need for medical products and third‐party care.179

171 § 500.3107(1)(a); see, e.g., Heinz v. Auto Club Ins. Ass’n, 443 N.W.2d 4, 5 (Mich. App. 1995)

(“[T]he no‐fault act is not limited strictly to the payment of medical expenses.”). 172 See, e.g., Hamilton v. AAA Mich., 639 N.W.2d 837, 843 & n.2 (“Costs resulting from the

appointment of guardians or conservators to perform services for seriously injured persons,

and room and board, attendant care, modifying vehicles for paralyzed individuals, rental

expenses, and similar costs have been found by this Court to be reasonably necessary

expenses under subsection 3107(1)(a).”). 173 See McCormick, 795 N.W.2d at 538 (quoting Kreiner v. Fischer, 683 N.W.2d 611 (Mich. 2004)

(Cavanagh, J., dissenting)) (“[B]ecause ‘the Legislature avoided drawing lines in the sand . . .

so must we.’”). 174 In 2009 in the United States, over two million people were injured in automobile accidents.

NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS 2009, at 103 (2009), available at

http://www‐nrd.nhtsa.dot.gov/Pubs/811402.pdf. 175 See MICH. COMP. LAWS § 500.3107(a) (2002); see, e.g., Nasser v. Auto Club Ins. Ass’n, 457

N.W.2d 637, 647 (Mich. 1990). 176 See Burke v. Warren, 307 N.W.2d 89, 93 (Mich. Ct. App. 1981) (“[T]he [No‐Fault Act] must

be liberally construed in favor of those it intends to benefit: the accident victims.”). 177 See Mark Henderson, Stem‐Cell Therapy Gives Hope to Accident Victims, THE TIMES, Jan. 23,

2009, http://www.timesonline.co.uk/tol/life_and_style/health/article5569623.ece. 178 Contra Krohn v. Home‐Owners Ins. Co., No. 283862, 2010 WL 293004, at *2 (Mich. Ct. App.

Jan. 26, 2010). 179 See, e.g., Hoover v. Mich. Mut. Ins. Co., 761 N.W.2d 801, 804‐05 (Mich. Ct. App. 2008)

(holding that conservators of the estate for an adult with quadriplegia were entitled to PIP



When a jury finds that an innovative procedure is reasonable and necessary for an auto accident victim, that procedure should qualify for coverage for the same reason any other expense under PIP is covered: the No‐Fault Act guarantees it.180 Michigan residents are required to have PIP insurance, and in exchange they are told that they will be reimbursed adequately and promptly for reasonable and necessary expenses that result from auto accident injuries.181 Despite this promise, the Krohn decision denies Michigan’s insured, who would be unable to pay out‐of‐pocket for experimental procedures, what is likely their only chance at recovery and leaves these individuals susceptible to bleak futures.

CONCLUSION

The Michigan Supreme Court erred in its decision to exclude Kevin Krohn’s procedure under the No‐Fault Automobile Insurance Act as a matter of law. The court ignored precedent that established when matter‐of‐law determinations could be made for purposes of deciding reasonable necessity and disregarded language within the Act that indicates a disfavor for such determinations. Further, the court upended the legislature’s goals in enacting No‐Fault, eliminating an entire category of potential benefits for auto accident victims in Michigan. The court strayed from established aspects of statutory interpretation, creating an unprecedented threshold test for experimental procedures under the No‐Fault Act. Further, the holding provides no guidance for future courts to apply the standard because the key words—“efficacious” and “objective and verifiable medical evidence”—are left undefined. The Michigan Supreme Court should have upheld the trial court’s decision to allow the jury to determine whether Kevin Krohn’s procedure was reasonable and necessary under the No‐Fault Act, as the Michigan legislature intended.

benefits for a home security system, utility bills, elevator inspection costs, dumpster costs, and

house cleaning and snow removal expenses because they were necessitated by the accident

victim’s injuries). 180 See McCormick v. Carrier, 795 N.W.2d 517, 547 (Mich. 2010). 181 Darmofal, supra note 40, at 602‐03; see Jones, supra note 21.

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