Cherry v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 03 August 1992
• Docket Number: Docket No. 135963
• Citation: 489 N.W.2d 788,195 Mich.App. 316
• Parties: Terry CHERRY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 788

489 N.W.2d 788

195 Mich.App. 316

Terry CHERRY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

Docket No. 135963.

Court of Appeals of Michigan.

Submitted July 15, 1992, at Lansing.

Decided Aug. 3, 1992, at 9:50 a.m.

Released for Publication Oct. 5, 1992.

Timothy A. O'Rourke, Lansing, for plaintiff-appellant.

Fraser Trebilcock Davis & Foster, P.C. by Mark A. Bush, Lansing, for defendant-appellee.

Before SAWYER, P.J., and CONNOR and BEST, II, ^* JJ.

CONNOR, Judge.

Plaintiff appeals by leave granted from a circuit court affirmance of a district court grant of summary disposition for defendant of plaintiff's complaint for first-party no-fault insurance benefits, MCR 2.116(C)(10). We affirm.

In granting leave, we ordered the parties to address the following issue:

Under § 3107 of the Insurance Code [M.C.L. § 500.3107; M.S.A. § 24.13107], is an insured's right to personal protection insurance benefits for otherwise reasonably necessary products, services, and accommodations for the injured person's care, recovery or rehabilitation, based on otherwise reasonable charges, contingent on those products, services or accommodations being furnished by licensed health care providers?

The facts in this case are generally not in controversy. Plaintiff suffered injuries in an automobile accident and was referred by her treating physicians to Deborah Lincoln, a licensed registered nurse who practices acupuncture. The acupuncture has been beneficial to plaintiff in the treatment of her injuries, but defendant refused to pay for the services rendered by Lincoln for the reason that Lincoln is not licensed to practice acupuncture in Michigan. Defendant has otherwise paid for plaintiff's medical expenses and indicated that it would pay for acupuncture treatments as recommended by plaintiff's physicians, but that it would only pay for treatments from licensed acupuncturists, or a person acting under the supervision of a medical doctor, as defined by M.C.L. § 333.16109(2); M.S.A. § 14.15(16109)(2).

Lincoln practices on her own and is self-employed, but shares office space with two physicians, neither of whom are trained to perform acupuncture. One of the physicians referred plaintiff to Lincoln. Plaintiff's other physicians, who were involved in the referral, also are not trained in acupuncture.

Lincoln takes only patients who are referred by physicians and uses the doctors' diagnoses in determining how to treat patients. However, Lincoln independently decides where to place needles, how many treatments are required initially, and determines protocol. The referring physicians stay in contact with Lincoln by telephone or correspondence regarding the progress of treatment, but are not physically present during the procedures.

Defendant moved for summary disposition on the ground that it did not have to pay benefits for Lincoln's services because she was not a physician nor did she render the services while acting under the supervision of a physician and therefore she was operating as an unlicensed medical care provider. The trial court agreed with defendant and granted summary disposition. The circuit court affirmed.

A no-fault insurer is liable only to pay no-fault medical benefits only for medical treatment that meets the requirements of the no-fault act, M.C.L. § 500.3105; M.S.A. § 24.13105. A claimant who seeks to hold an insurer liable for no-fault medical benefits under M.C.L. § 500.3107(a); M.S.A. § 24.13107(a) has the burden of proving that the expense was reasonably necessary, the charge was reasonable, and the expense was incurred. Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 49-50, 457 N.W.2d 637 (1990).

M.C.L. § 500.3107; M.S.A. § 24.13107 grants personal protection insurance benefits for medical expenses as follows: ¹

(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery or rehabilitation....

At issue is whether this section should be read to require that the medical expenses incurred be provided by a lawfully licensed practitioner, even if the service is provided at a treating physician's recommendation. Our decision depends upon the Legislature's intent. Kirksey v. Manitoba Public Ins. Corp., 191 Mich.App. 12, 16, 477 N.W.2d 442 (1991).

Defendant argues that § 3107(a) must be read in conjunction with M.C.L. § 500.3157; M.S.A. § 24.13157. We agree. In order to give effect to the entire enactment, under the rules of statutory construction, we must read § 3107(a) in conjunction with M.C.L. § 500.3157; M.S.A § 24.13157. Guitar v. Bieniek, 402 Mich. 152, 158, 262 N.W.2d 9 (1978). That statute provides as follows:

A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance ... may charge a reasonable amount for the products, services and accommodations rendered. The charge shall not exceed the amount the person or institution customarily charges for like products, services and accommodations in cases not involving insurance. [Emphasis added.]

Although it is not clear from a reading of § 3107(a) whether an insurer must pay for medical expenses incurred in treatment by an unlicensed provider, reading the no-fault act as a whole and M.C.L. § 500.3157; M.S.A. § 24.13157 specifically, we believe it is clear that the Legislature intended that only treatment lawfully rendered, including being in compliance with licensing requirements, is subject to payment as a no-fault benefit. In Attorney General v. Raguckas, 84 Mich.App. 618, 626, 270 N.W.2d 665 (1978), the Court held that acupuncture is the practice of medicine or osteopathy. The practice of medicine or the administering of medical treatment can be lawfully performed only by licensed physicians. M.C.L. § 333.16294; M.S.A. § 14.15(16294). Consequently, unless acupuncture is administered by a licensed physician, it is not lawfully rendered. If the treatment was not lawfully rendered, it is not a no-fault benefit and payment for it is not reimburseable. ² We note that other jurisdictions have reached similar results. See Pavelic v. Nationwide Ins., 352 Pa.Super. 11, 13-14, 506 A.2d 1310 (1986); Leonard v. Preferred Risk Mutual Ins. Co., 247 Ga. 574, 576, 277 S.E.2d 675 (1981).

Plaintiff has also argued on appeal that, as a registered nurse, Lincoln could provide acupuncture consistent with her licensing as a registered nurse, which includes the treatment and care of patients, as provided in M.C.L. § 333.17201; M.S.A. § 14.15(17201). We disagree. Michigan has...