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No fault carrier does not have to pay for stem cell surgery on paralyzed motorist

Kevin Krohn suffered a devastating mid-chest paralysis in a head-on motor vehicle collision.  He lost everything below the injury:  bowel and bladder control, sexual function, motor and sensory enervation of his legs.  At the Rehabilitaton Institute of Michigan, he learned of a procedure performed by a team of doctors in Portugal who use stem cells from the upper sinus of the injury victim to achieve partial spinal cord rejuvenation.  Because he was ethically challenged by the use of stem cells from a fetus, Krohn explored this option further.  The RIM doctor cannot, by law, recommend the Portugese procedure, however, he presented it as a reasonable alternative for Krohn to consider.

Krohn met a patient who had progressed from Krohn's state to walking between parallel bars with braces and determined to investigate further.  Ultimately he chose to have the surgery, even though he had to pay for it out-of-pocket and agree to follow-up with intensive, 4-hour per day, physical therapy.

Ultimately, Krohn regained the ability to know when he needed to empty his bladder and the ability to expel fecal matter without using his hand to assist, digitally.  He achieved the ability to crawl, both forwards and backwards.  Overall, by the completion of therapy, he was a much healthier, safer patient, experiencing fewer infections, fewer safety risks and enduring less intensive medical involvement. 

The surgery cost $51,000.00, however, neither Blue Cross nor Home-Owners, a subsidiary of Auto-Owners, would pay the related costs.  Home-Owners, the no fault PIP carrier, pointed to the experimental nature of the surgery, the fact that it was not FDA-approved in the U.S., the fact that the doctors who performed it were not licensed in the U.S., and the fact that it "had not gained general acceptance in the [U.S.] medical community" as grounds for holding that it was not "reasonably necessary" for Krohn's care.  Ultimately, two of the three Court of Appeals judges agreed with Home-Owners and rejected Krohn's claim.   They even held that the Portugese surgeon who pioneered the procedure and explained Krohn's care was not qualified to testify---even though the Defendant insurer had never made that argument before the lower court (or given the Plaintiff and the doctor an opportunity to respond with proofs). 

To her credit, Judge Karen Fort Hood wrote a thoughtful dissent, documenting why payment of this particular surgery for this particular patient was a "reasonable" and "necessary" choice under the circumstances.  Judge Fort Hood noted that recognizing the appropriateness of this particular procedure, even though it had not yet been approved by the FDA (although it has been approved, apparently, by the European equivalent of our FDA), would not "open the floodgates" to unsubstantiated and inappropriate medical expenses under the no fault act. 

We wouldn't be surprised to learn that the surgery has actually saved medical expenses in the long run, given the likelihood that Krohn's improved mobility, bowel and bladder control will result in savings on attendant care and other safety and hygienic expenses otherwise necessarily payable by the No Fault insurer.  Perhaps Krohn will find a more reasonable ear in the Supreme Court.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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