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On July 17, the Michigan Court of Appeals affirmed summary disposition on behalf of an insurer ruling that the medical provider involved in the case failed to demonstrate that the treatment was objectively reasonable or necessary under the Michigan No-Fault Act.

In SNM Physical Therapy LLC v. Citizens Insurance Company of the Midwest, an unpublished, per curiam opinion of the Michigan Court of Appeals, Docket No. 375649, the underlying claimant, Ilham Elrahazoui, was injured in a car accident on Sept. 25, 2022, where she had coverage through Citizens Insurance Company of the Midwest.

After the accident, the plaintiff, SNM Physical Therapy LLC, treated Elrahazoui using a Soleve Nervomatrix device for Trigger Point Impedance Imaging (TPII), which is meant to relieve back pain by delivering mild electrical stimulation to specific muscle “trigger points.” The device allegedly locates these points using a proprietary algorithm that measures electrical resistance in the skin.

Elrahazoui signed over her right to seek payment for this treatment to the provider, who billed Citizens directly. Citizens refused to pay because the provider had not proven the treatment was medically effective.

SNM sued Citizens for payment, and Citizens filed a motion for summary disposition, relying on expert testimony from Dr. Adil Ali, who said the Nervomatrix device is not a generally accepted medical treatment, that no one really knows how its trigger-point-detecting algorithm works, and that there is no solid scientific evidence the device relieves pain any better than a placebo.

Dr. Ali referenced two studies – Gorenberg and Ferrandiz – noting that neither showed the device worked better than a placebo and that the device manufacturer funded both studies supporting the device. Dr. Ali also opined that the “device is not the accepted medical standard for diagnosing and treating acute or chronic painful neurological and musculoskeletal conditions.”

In response, SNM countered with an affidavit from its own expert, Dr. William McGee, who, relying on the Gorenberg and Ferrandiz studies, described the device’s algorithm favorably and said it allowed for “precise identification” of trigger points, offering a “novel approach” to pain treatment. However, even Dr. McGee acknowledged that the treatment (1) was “novel,” (2) was an addition to conventional treatments (rather than a replacement) and (3) that more research and larger clinical trials were still needed to confirm how well it works.

The trial court agreed with Citizens’ arguments and granted summary disposition against SNM, which led to the appeal.

Under the No-Fault act, personal protection insurance benefits are payable for allowable expenses “consisting of reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.31507(1)(a).

This means that to qualify for payment, the treatment must meet two requirements: it must be (1) objectively reasonable in cost and (2) actually necessary for the patient’s recovery. See Krohn v Home-Owners Ins Co, 490 Mich 145, 163; 802 NW2d 281 (2011). Consequently, treatment that is experimental and not generally accepted in the medical community is not reasonable or necessary unless there is objective and verifiable evidence that the treatment is effective. Id. at 148 (emphasis added).

Although the issue of whether services or products are “reasonably necessary” is typically a question of fact, in some cases, the trial court can decide the reasonableness or necessity of a medical expenses as a matter of law. Id. at 158. For example, procedures or treatments that are accepted by the medical community are more likely to be presumed as necessary than those which are experimental or not generally accepted by the medical community.

Regardless of the type of treatment, the burden of proof is the same, and it is up to the medical provider to show the treatment was reasonably necessary. See Nasser v Auto Club Ins Ass’n, 435 Mich 33, 50; 457 NW2d 637 (1990). Thus, when the treatment is experimental, the medical provider must show its effectiveness with objective and verifiable medical evidence. Krohn, supra, at 148.

Under this framework, the trial court considered SNM’s argument that the Nervomatrix device treatment is accepted in the medical community, which relied on Dr. McGee’s report. However, the appellate court noted that while Dr. McGee supported the use of the Nervomatrix device, he also described the treatment as “novel” and qualified it as an addition to “conventional” treatments. More importantly, the trial court paid close attention to Dr. McGee’s testimony that additional research is still needed to “ascertain” the effectiveness of such treatment.

In contrast, Citizens presented evidence that the device manufacturer conducted the two studies Dr. McGee relied upon, and both studies did not show that the “Nervomatrix device produced better results than placebo treatment.”

For these reasons, and subject to an objective standard to determine whether an expense is “reasonably necessary,” the appellate court held that the trial court did not err when it granted summary disposition against SNM. The appellate court reasoned that SNM did not present evidence showing the Nervomatrix treatment was effective and thus failed to show the treatment was objectively reasonable or necessary for compensation under the No-Fault act.

Although this opinion was not scheduled for publication, it illustrates a simple framework to challenge the reasonableness and effectiveness of other treatments that No-Fault providers are advancing in connection with automobile accidents, and which Medicare and other health insurers deem as “experimental” or “novel:”

• Are the treatment, services or products generally accepted by the medical community?
• Are the treatment, services or products accepted as part of the medical standard to treat conditions or injuries arising from motor vehicle accidents?
• Are the treatment, services or products considered as “additions” to conventional treatment, services or products used to treat similar conditions or injuries?
• Are the treatment, services or products considered experimental, novel or investigational?
• Are the treatment, services, or products treatment considered “effective” to treat conditions or injuries arising from motor vehicle accidents?
• Are there any independent studies assessing the effectiveness of the treatment, services or products?
• Is there any independent literature assessing the effectiveness of the treatment, services or products?
• Does Medicare pay for these treatments, services or products?
• Do other health insurers pay for these treatments, services or products?
• Are the treatment, services or products objectively reasonable in cost?
• Are the treatment, services or products actually necessary for the patient’s recovery?

As the SNM Physical Therapy panel outlined, compensation under the No-Fault act requires objective proof of how effective the treatment really is to establish reasonableness and necessity. It is only a matter of time before other treatments, which are considered to be novel, including photobiomodulation, cold laser, low-level laser light therapy and Platelet-Rich Plasma (PRP) injections, undergo similar scrutiny and analysis.