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Michigan Attorney: “Insurance Companies Can Completely Close off Access to Medical Assistance”

October 8, 2009 by Steven M. Gursten

On Tuesday I wrote about an appalling case, Roberts v. Farmers Insurance Exchange; involving a 14-year-old car accident victim with traumatic brain injury and an insurance company that once again, refused to pay her no-fault insurance benefits. Farmers Insurance did this because the child did not make it to her mandatory insurance medical examination.

But the reason she couldn’t get there is because her indigent, working mother was in the ICU with a serious illness for more than two weeks.

Obviously, the child with brain injury could not drive herself, and it would not have been safe for her to take a bus and find her way home, as Farmers suggested. But the Michigan Court of Appeals allowed the insurance company to stop paying benefits, punishing the child for her mother’s work conflicts and hospitalization. This Grand Rapids case is definitely one of the most underhanded tactics used by insurance companies to skirt paying benefits, and ridiculous decisions by a high court that I have seen in my career as a no-fault attorney.

There are some very important facts that weren’t included in the published Roberts decision. With that, I’d like to share a letter from my friend and great attorney Bill Decker, on his experience representing the plaintiff in this case:

“Recently, an article ran in the Michigan Lawyers Weekly: “Car Accident Victim Missed Medical Exams Missed out on Benefits” which discussed a recent Court of Appeals ruling which allows no-fault insurance carriers to cut off “uncooperative” insureds. (Roberts vs. Farmers Insurance Co.) I am the attorney for the Plaintiffs in the matter.

This is a very disturbing decision by this panel of the Court of Appeals for numerous reasons. Regardless of the readers bias (Plaintiff/Defendant) everyone should be concerned about the absence of compassion and the dangerous absurdity of this ruling.

There is no question the insurance carrier had initial reasons to be frustrated. They kept unilaterally scheduling Defense Medical Examinations for this minor brain-injured child without any proactive communication with the indigent mother. Conflicts with the mother’s work schedule and ability to negotiate transportation caused several cancellations. As such, when my office became involved, we immediately made a request for a case manager to help out with these logistics. The insurance carrier refused saying, “It was not necessary.”

The DME which was the subject of the $1,000 penalty was scheduled in coordination with my office. The mother’s work schedule was cleared, directions were provided and the minor child had no other conflicts. However, two days before the exam, the mother became acutely ill and was taken to the hospital emergency department. A significant lung infection left her hospitalized for over 2 weeks. Part of that time in ICU with a chest tube. Obviously, the minor brain-injured child (14 years old) could not drive herself to the appointment and understandably had no concern other than her mother’s health. Our office did not become aware of the medical crisis until we received a letter a week later from the insurance carrier informing us of the missed appointment, closure of the file and the $1,000 penalty.

We immediately informed the insurance carrier of the acute medical crisis. Their response was continued closure of the minor brain-injured’s PIP file and adamant refusal to re-open it until the $1,000 was paid. Notwithstanding the fact that the minor brain-injured child did absolutely nothing to contribute to the missed appointments, they punished her for her mother’s work conflicts and acute hospitalization. As such, the only option was to file a lawsuit to compel them to re-open the file. In the meantime, tens of thousands of dollars of medical expenses were being incurred.

Subsequently, cross motions for summary disposition resulted in the insurance carrier being deemed “unreasonable” under the circumstances for closing the minor brain-injured child’s file and were assessed attorney fees pursuant to MCL 500.3148. However, the court also suggested the mother should have somehow made alternative arrangements for the child to attend the DME, especially in light of the previous failures, and assessed her the $1,000 penalty.

Cross appeals occurred and the Court of Appeals reversed the finding of “unreasonableness” and affirmed the penalty against the mother.

Notwithstanding the absurd inequity of allowing an insurance carrier to punish the minor brain-injured child for things over which she had no control, most disturbing is the Court of Appeals logic regarding the basis for affirming the $1,000 penalty against the mother. In pertinent part, the decision states:

Here, the appointment in question was at Dr. Fabiano’s business in Grand Rapids. Thus, the appointment was in the same city where Brittany lived. There is no indication that Brittany could not have taken a taxi or a public bus. There is therefore no indication that it would have been impossible, or even extremely difficult, for Brittany to attend the appointment with Dr. Fabiano.

According to this panel, we are now in an age where the insurance companies can completely close off access to medical assistance because a minor brain-injured child, whose mother was in acute care in a hospital, did not have the foresight to call a cab or jump on a bus and negotiate her way through an adversarial medical appointment and then somehow find her way home. When I discuss this ruling with the lay public, the response is always the same: “No parent in their right mind would ever allow a child to be exposed to those kinds of risks, especially a brain-injured child.” Equally disturbing is the fact that no facts about cabs or buses were ever introduced at the trial court level nor did the insurance carrier ever suggest this theory to the court. This was completely created from unsupported assumptions.

If this decision does not significantly disturb the collective conscience of the citizens of this State, I fear that compassion, especially for children, will never return to our system of “justice.” According to this Court’s priorities, fairness to an insurance company is more important.”

Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to a published, year-end verdicts and settlements report.

Related information:

Dealing with Michigan Auto Insurance Companies

Attorney Video: Michigan No-Fault Benefits Overview

Protecting Your Michigan Insurance Rights

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights.

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