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Skwierc, et al v Whisnant, et al (COA – PUB 11/23/2021; RB #4350)

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Michigan Court of Appeals; Docket #355681; Published
Judges Gleicher, Kelly, and Ronayne Krause; Authored
Official Michigan Reporter Citation: Forthcoming; Link to Opinion; Link to Concurrence


STATUTORY INDEXING:
PIP Benefits Not Payable for Certain Chiropractic Services [§3107b(b)]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous published decision authored by Justice Borrello (Boonstra, concurring), the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Michigan Head & Spine Institute’s (“MHSI”) first-party action against Defendant Meemic Insurance Company (“Meemic”). The Court of Appeals held that MHSI was entitled to reimbursement under the no-fault act for an MRI it performed on Meemic’s insured’s lumbar spine, even though the MRI was ordered by a chiropractor. In so holding, the Court of Appeals concluded that the MRI at issue fell within the definition of “practice of chiropractic” under MCL 333.16401, as of January 1, 2009, and that, as a result, the MRI qualified as an allowable expense under MCL 500.3107b(b).

Jeffrey Skwierc injured his lower back in a motor vehicle collision and sought treatment from a chiropractor, Marsh Kroener, D.C. Kroener referred Skwierc for an MRI of his lower spine, which was performed at MHSI. Skwierc assigned his right to pursue PIP benefits for the MRI to MHSI, who thereafter asserted said right as an intervenor in Skwierc’s first-party action against Meemic. Meemic moved for summary disposition with respect to MHSI’s claim, arguing that the MRI was not compensable pursuant to MCL 500.3107b(b), because MRI ordering is outside the scope of “practice of chiropractic” under MCL 333.16401. The trial court agreed and granted Meemic’s motion.

The Court of Appeals reversed the trial court’s summary disposition order, noting, preliminarily, that, under MCL 500.3107b(b), a no-fault insurer need only reimburse a claimant for chiropractic services if those services were “ ‘included in the definition of ‘practice of chiropactic’ under MCL 333.16401 as that statute existed on January 1, 2009.’ ” As of January 1, 2009, MCL 333.16401 provided that “practice of chiropractic” includes, “ ‘diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care,’ ” as well as “ ‘the use of analytical instruments . . . for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine.’ ” In this case, the Court held that the MRI certainly did fall within the definition of “practice of chiropractic” under MCL 333.16401, for two reasons: (1) the MRI in this case qualified as “spinal analysis,” and (2) an MRI is a “analytical instrument.” Therefore, the MRI was compensable under MCL 500.3107b(b).

“In this case, the MRI at issue was of Skwierc’s lumbar spine. The trial court ruled that the lumbar spine MRI did not fall within Subparagraph (i) because ‘MRIs are tests that must be interpreted by doctors in determining a patient’s condition and reaching a diagnosis; MRIs do not, in and of themselves, constitute a diagnosis.’

The trial court appears to have misunderstood the applicable limits on a chiropractor’s diagnostic authority in this context, which is essentially defined by the distinction between spinal and non-spinal areas. Hofmann, 211 Mich App at 85-87. ‘[A] chiropractor’s diagnostic authority includes the authority to perform ‘spinal analysis,’ which encompasses ‘monitor[ing] the body’s physiology for the purpose of determining subluxated or misaligned vertebrae or related bones and tissues,’ ’ but ‘a chiropractor’s authority to analyze and monitor the body’s physiology necessarily is limited to the spinal area only . . . .’ Id. at 86-87 (second alteration in original; citations omitted). Because the MRI in this case was limited to a portion of the spine, its use was not outside the scope of chiropractic diagnostic authority. Id. The trial court erred by concluding otherwise.

Subparagraph (iii) of the statute additionally provides that the practice of chiropractic includes the ‘use of analytical instruments . . . regulated by rules promulgated by the board pursuant to section 16423, . . . for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine.’ As of January 1, 2009, the term ‘analytical instruments’ was defined by rule to mean ‘instruments which monitor the body’s physiology for the purpose of determining subluxated or misaligned vertebrae or related bones and tissues.’

. . . when used for an analysis of the spine, it is clear that an MRI falls within the scope of chiropractic practice as it was defined in January 1, 2009. See Hofmann, 211 Mich App at 87-88 (holding that certain dermathermography instruments that ‘monitor the body’s physiology by measuring a person’s skin temperature at each spinal level for the purpose of determining subluxated or misaligned vertebrae’ were therefore limited to spinal analysis and within the scope of Subparagraphs (i) and (iii)).”

Justice Boonstra “generally agree[d]” with the majority’s analysis, but wrote separately to emphasize the fact that the MRI in this case was performed by doctors, not chiropractors, and that Meemic’s motion and this appeal failed to address the actual issue in this case: whether “the mere fact that an MRI is ordered by a chiropractor somehow transforms the performance of MRIs (by non-chiropractic medical doctors) into the performance of chiropractic services.”

“It seems clear to me that medical doctors who perform MRIs are not, merely by doing so, performing chiropractic services. And I find it highly questionable to presume that the mere fact that an MRI is ordered by a chiropractor somehow transforms the performance of MRIs (by non-chiropractor medical doctors) into the performance of chiropractic services. In any event, that is the question that first should have been asked and answered in this case. Instead, the summary disposition motion and, consequently, this appeal, skipped over that threshold question and focused both the trial court and this Court on whether a chiropractor may properly order an MRI.”


Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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