ADVOCACY ORGANIZATION FOR PATIENTS V AUTO CLUB INSUR ASSN

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STATE OF MICHIGAN COURT OF APPEALS FOR PUBLICATION July 3, 2003 9:00 a.m. ADVOCACY ORGANIZATION FOR PATIENTS & PROVIDERS, et al., Plaintiffs-Appellants, v AUTO CLUB INSURANCE ASSOCIATION, ALLSTATE INSURANCE COMPANY, CITIZENS INSURANCE COMPANY, FARM BUREAU INSURANCE COMPANY, FARMER'S INSURANCE EXCHANGE, FRANKENMUTH MUTUAL INSURANCE COMPANY, IMPERIAL MIDWEST INSURANCE COMPANY, SECURA INSURANCE MUTUAL COMPANY, STATE FARM INSURANCE COMPANY, TRANSAMERICA INSURANCE GROUP, WOLVERINE MUTUAL INSURANCE COMPANY, LAHOUSSE-BARTLETT DISABILITY, MANAGEABILITY, INC., MEDCHECK MEDICAL AUDIT SERVICES, RECOVERY UNLIMITED, INC., and AUTO OWNERS INSURANCE COMPANY, Defendants-Appellees No. 231804 Eaton Circuit Court LC No. 96-001409-CZ Updated Copy August 15, 2003 and LINKAGE ENTERPRISES, INC., Defendant. Before: Fitzgerald, P.J., and Markey and Murray, JJ. FITZGERALD, P.J., (concurring.). In reaching its conclusion, the majority strictly applied the plain and unambiguous language of MCL 500.3107, as they are required to do. Therefore, I agree with the analysis -1- employed by the majority. I write separately, however, because I am bothered by the fact that the Legislature has not declared what is a "reasonable" charge for a particular product or service and has not provided statutory criteria to determine whether a charge is reasonable under MCL 500.3107. As noted by the majority, ยง 3107 is subjective and requires insurers to make a determination in each instance whether a charge is reasonable. When an insurer does not pay the amount of the charge in full, doctors and physicians often sue their patients for the balance unpaid by the insurer. The unfortunate results of the failure to provide criteria for determining the reasonableness of a charge are destruction of the doctor-patient relationship when the doctor sues the patient, as well as increased litigation where a trier of fact is required to determine the reasonableness of the charge. To address these problems, I would strongly recommend that legislation be enacted that requires the Commissioner of Insurance to adopt medical-fee schedules, similar to the reimbursement schedules for health-care providers that are common in connection with health-insurance policies, with respect to reimbursement of health-care providers under policies of automobile insurance. Under this scheme, no health-care provider could demand or request any payment from any person in excess of those fees permitted by the medical-fee schedules established pursuant to the act, nor would any person be liable to any health-care provider for any amount of money that resulted from the charging of fees in excess of those permitted by the medical-fee schedules. /s/ E. Thomas Fitzgerald -2-

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