Author(s): James L. Borin, Simeon R. Orlowski

Ms. Andrews is a Partner in the Firm’s Troy Office and can be reached at (248)641-7600 or bandrews@garanlucow.com Volume XXII, No. 15 April 23, 2010

LAW FAX MICHIGAN LAW – BLUE | INDIANA LAW – RED www.garanlucow.com

Garan Lucow Miller, P.C. 1111 West Long Lake Road, Suite 300 Troy, Michigan 48098 248.641.7600 From the Co-Editors James L. Borin & Simeon R. Orlowski NO NEW RULES – YET – FOR INDEPENDENT MEDICAL EXAMINATIONS (IME’s) CONTRIBUTOR – BETH ANDREWS1

In June of 2009, the Michigan Office of Financial and Insurance Regulation (OFIR) proposed new rules regulating independent physical or mental examinations (IME’s) performed at an insurer’s request for the purpose of determining a person’s health or condition as it relates to his or her claim for insurance benefits. If and when adopted, these rules would become Michigan Administrative Code Rules 500.2251 to 2254. The rule-making process requires that the draft rules be published, public comment be solicited and a hearing be held. The hearing on these rules as originally drafted was held on

December 16, 2009. Many comments critical of the current proposed rules were received and the decision was made to revise them. When revisions are complete, there will be another opportunity for further comment and (if the revisions are significant enough), another public hearing. Those of you who have seen the original draft rules may have noted the statement that they would “take effect on May 1, 2010.” That was true only if they were adopted – which they were NOT.

No rules have yet been adopted, and nothing will happen on May 1st. As initially proposed, these draft rules addressed several issues: First, the IME doctor would have to be licensed in Michigan or another state and have no history of pending or past disciplinary actions or sanctions, loss of staff privileges, or restrictions on participation which would raise a substantial question as to the doctor’s competence or moral character.

Second, the doctor’s medical specialty would have to be relevant to the subject of the IME. Third, the IME doctor would have to have devoted a substantial portion of his or her time within the preceding year to active clinical practice and/or instruction of students in an accredited health professional school or accredited residency or clinical research program. (The current draft rule requires that it be more than fifty percent of the doctor’s professional time, but the percentage in the final draft bill may be less.) Many comments were directed to this provision. Fourth, the IME doctor would have to have the same or higher level of education, certification and, if applicable, board certification, as the claimant’s treating doctor whose opinion (presumably) the IME doctor’s is designed to address. Many comments were directed to this provision, as well, and it may yet be revised.

When and if adopted, these rules could significantly affect an insurer’s right to use physicians and medical evaluation companies whose doctors spend the majority of their time performing IME’s instead of teaching or actively practicing medicine. It appears that the comments received on the first round of public comment were seriously considered by OFIR. Insurers would do well to monitor the progress of these rules as they continue through the adoption process.

2Mr. Brickley a Partner in the Firm’s Grand Blanc office and can be reached at (810)695-2700 or wbrickley@garanlucow.com

MICHIGAN COURT OF APPEALS REJECTS CLAIM OF “MISIDENTIFICATION.” CONTRIBUTOR – WILLIAM BRICKLEY 2

A person witnesses a crime and reports what he sees to the police. Using that information, the police arrest a suspect and charge him with the crime. The suspect is then exonerated and brings a claim against the person who identified him as the criminal in the first place. The Court of Appeals has recently ruled that this type of claim simply can not survive.

In the case of Kapala v JP Morgan Chase Bank, et al, Court of Appeals # 288896, released April 15, 2010, the Court considered a claim where the plaintiff had been arrested and charged as the suspect in a bank robbery. There was no dispute that the bank had been robbed and the teller involved identified the plaintiff as the person who committed the crime. Upon being presented with reliable alibi evidence, the prosecution dismissed the charges. The plaintiff than sued the teller and her employer, the bank, claiming they were responsible under the claimed tort of “Misidentification” or “Negligent Identification.”

The Court rejected the claim. The Court pointed out that all the teller had done was to provide information to the police. It was the police and prosecutor who took the information and acted upon it. They cited with approval from a prior case where the issue was one of False Arrest. A person is not subject to liability for false arrest where the person merely gives information to the police and the police use their own judgment in deciding whether to make an arrest.

The Court pointed out that a claim could exist if the bank had taken on a more active role in the investigation and it could be shown that it affected the police’s own independent judgment as to whether to bring charges or not.

Clearly, there are compelling policy reasons why such a cause of action should not exist. The chilling effect that such a claim would have on police investigations would be significant. It is often extremely difficult for the police to obtain cooperation of witnesses in the first place. Allowing such a claim would make individuals with information much less willing to cooperate in any investigation.

Upcoming Seminars

GARAN LUCOW MILLER INDIANA STATE & FEDERAL LAW SEMINAR Garan Lucow Miller, P.C. is pleased to present a half day seminar covering only Indiana state & federal law on May 17, 2010 at the Hyatt Regency, located at 1 South Capitol Avenue in downtown Indianapolis (317) 632-1234. The day will begin with a continental breakfast from 8:00 – 9:00 a.m., followed by the program. Comprehensive written materials will be distributed to all seminar attendees.

If you are able to attend this complimentary event, please register via e-mail to Eileen Carty at: ecarty@garanlucow.com or phone Ms. Carty at (800) 875-7600 for reservations. We hope to see you there!

8:00 – 9:00 Continental Breakfast – Registration

9:00 – 9:05 Welcome and Introductions David N. Campos

9:05 – 9:35 Select First Party Indiana Law Updates: What, and So What? Good Faith / Bad Faith * Emotional Distress – Might Independent Limits Not Apply? * UM/UIM: Multiple Claimants / Multiple Coverages & Setoffs * Tenders of Indemnity and Defense Speaker: Gregory M. Bokota

9:35 – 10:05 Medicare Update on SCHIP Extension Act Section 111 Reporting * CMS alerts 2/24/10 for Non-Group Health Plans * New Provisions for NGHPs * Who Must Report * New Time Line for Reporting TPOC & ORM Medicare Recovery Program * Latest Trends of Medicare * Reduction of Lien Based upon Procurement Costs 42 CFR 411.37 * US v Stricker (Lien Recoupment from “Primary Payor or Person or Entity Receiving Payment from”) * Bryant v Commission of Social Security (Equal Access to Justice Act Attorney Fees case) * Merryfield v US (Proper Notice of Admin Remedies Prior to Suspension of Benefits & Due Process) Speaker: Lori A. Ittner

10:05 – 10:20 Break

10:20 – 10:50 Strict Compliance With Medicare Administrative Rules and Suits Against the

Government Including pre-requisites to suit, including administrative remedies, federal immunity issues, and the complicated nuances involved as having the U.S. Government as the named defendant Speaker: Kelly M. Kluting

10:50 – 11:20 Coverage for Intellectual Property & Defending IP Claims * Brief Primer on Copyright, Trademark, and Trade Secret * Claims under the Indiana Tort Claims Act * Analysis of Indiana’s Right of Publicity Statute * Coverage issues arising in Intellectual Property cases Speakers: Robert D. Goldstein Timothy J. Jordan

11:20 – 11:40 The Top 10 Things to Keep in Mind During Litigation Advance Payments * Minor’s Compromise * Removal to Federal Court, etc… Speaker: Jennifer L. McCloskey

11:40 – 12:10 Indiana Law on Write-Offs Indiana Case Law update: Butler v. Department of Insurance www.in.gov/judiciary/opinions/pdf/04070901bd.pdf * Stanley v Walker * Sibbing v Cave Speaker: David A. Wilson

12:10 – 12:30 Questions and Answers

************************* ANNUAL TROY BREAKFAST SEMINAR Thursday, September 23, 2010 at the Troy Marriott. Agenda to follow at a later date.

RACE AND REMEMBER Garan Lucow Miller, P.C. is sponsoring a new event that will take place in downtown Detroit, specifically a 5k run (approximately 3 miles) and walk (2 miles with 1 mile option), called Hospice of Michigan’s 2010 Race and Remember. This event will take place on Saturday, June 12th, 2010, along the beautiful Detroit Riverfront starting at Rivard Plaza, next door to our Detroit office. The event honors loved ones who have received hospice care and to raise money for Hospice of Michigan’s Open Access Program. If you would like to participate either by running or walking in this event, you may register online at http://www.active.com/donate/raceandremember/garan Garan Lucow Miller’s team name is “GARAN’S GAZELLES”. Please resister as a team member.

Once registered, please contact Eileen Carty at ecarty@garanlucow.com, as Garan Lucow Miller, will provide parking/refreshments to all participants. GARAN LUCOW MILLER, P.C. ANN ARBOR • DETROIT • GRAND BLANC • GRAND RAPIDS • LANSING • MARQUETTE • PORT HURON • TRAVERSE CITY • TROY SAVE THE DATE

The 3rd Annual Cherry- Roubaix Race, sponsored by Garan Lucow Miller, P.C., will be held on Saturday and Sunday, August 28th and 29th, 2010, through the historic streets in the heart of Traverse City.

Mark your calendars to join us at this exciting event. If you have any questions or would like additional information on this race, please go to www.cherry-roubaix.com or contact Peter Worden, in our Traverse City office at: (231) 941-1611.

*****************************

SAVE THE DATE Event: Garan Lucow Miller’s Annual Golf Outing Date: Tuesday, August 24, 2010 Venue: Forest Akers West Golf Course on the campus of MSU Banquet dinner to be on campus at the University Club

Garan Lucow Miller, P.C., a full-service law firm since 1948, providing quality representation to a national clientele from the Great Lakes Region, is pleased to announce that it has opened an office in Merrillville, Indiana, to further facilitate your claim and litigation needs in Indiana and Illinois.

Garan Lucow Miller, P.C. 8401 Virginia Street Merrillville, Indiana 46410 Phone: 219.756.7901 Fax: 219.756.7902 Toll Free: 877.804.2801