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August 01, 2019
The recent legislative changes to the no-fault act will surely have a wide ranging effect on the daily task of adjusting PIP claims. The sweeping legislation has drastically changed the process of obtaining and utilizing one of the most important investigative tools used to defend against unrelated, unnecessary, or unreasonable claims for first party benefits – the independent medical examination (“IME”). Before its recent amendment, MCL 500.3151 gave little instruction as it pertains to the qualifications of the IME physician. The new legislation has now imposed three important requirements that MUST be fulfilled when seeking a valid, admissible, IME opinion.
The new IME requirements can be found in MCL 500.3151(2), which now states that a physician who conducts an IME must be licensed as a physician in this state or another state and meet the following criteria:
(a) If care is being provided to the person to be examined by a specialist, the examining physician must specialize in the same specialty as the physician providing the care, and if the physician providing the care is board certified in the specialty, the examining physician must be board certified in that specialty.
(b) During the year immediately preceding the examination, the examining physician must have devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of medicine and, if subdivision (a) applies, the active clinical practice relevant to the specialty.
(ii) The instruction of students in an accredited medical school or in an accredited residency or clinical research program for physicians and, if subdivision (a) applies, the instruction of students is in the specialty.
These legislative changes may sound familiar, as they are very close to the expert witness requirements for medical malpractice actions contained in MCL 600.2169. As such, while the terms “specialty” and “board certified” are not expressly defined in the amendments to MCL 500.3151, it is reasonable to believe that the Michigan Supreme Court will apply the same definitions that it has given these phrases in MCL 600.2169. When analyzing “specialty” in the context of MCL 600.2169, the Michigan Supreme Court stated in Woodard v Custer, 476 Mich 545, 561-562 (2006), that:
[A] ‘specialty’ is a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the [treating] physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the [IME physician] must practice or teach the same particular branch of medicine or surgery.
Further, the Michigan Supreme Court stated that:
[T]o be ‘board certified’ . . . means to have received certification from an official group of persons who direct or supervise the practice of medicine that provides evidence of one’s medical qualifications. Accordingly, if a [treating] physician has received certification from a medical organization to this effect, the [IME physician] must also have obtained the same certification in order to be qualified to testify concerning [whether the treatment provided was reasonable, necessary, and related to the motor vehicle accident.]
The new changes to the expert requirements will most certainly change the day-to-day adjustment of disputed No-Fault claims. While claimants will still have a contractual obligation to attend IME’s, there are boxes that must be checked by the insurance carrier before selecting a specific doctor to conduct the IME. In essence, the new legislation requires that the IME be conducted within a matching specialty in accordance with the treatment of the claimant. The use of the term “must” in the statute leaves no room for interpretation when it comes to board certification and specialty matching requirements. For example, if the statute is strictly construed, no longer will a neuropsychological IME be applicable if the insured is treating only with a psychologist. While a neuropsychologist may also be board certified in psychology, any opinion, or examination, must be limited to only psychology. Additionally, a claimant seeking chiropractic care by a board certified chiropractor cannot be independently examined by an orthopedist, even though the orthopedist may arguably give better insight into a spinal injury. In the same vein, a Physical Medicine and Rehabilitation IME will no longer be sufficient to dispute orthopedic treatment.
Aside from the “matching physician” requirements of MCL 500.3151, insurance carriers must also be cognizant of the clinical practice and medical background of the examiner. According to MCL 500.3151(2)(b)(ii), any physician conducting an IME must devote a majority of their professional time to either active clinical practice, instruction of students in an accredited medical school, or in an accredited residency or clinical research program. As such, the term “majority” must be construed as a 51% dedication to one of the above referenced practices. Most IME referral companies have begun the strenuous process of weeding out the physicians that do not fulfill these requirements, but the qualifications of a retained expert must be explored before the examination is conducted.
Not surprisingly, the Plaintiff’s bar has already begun the motion practice of seeking exclusion of expert testimony for failure to meet the “matching” and clinical requirements as set forth in the amended legislative language. Certainly this is not unexpected. However, it is misplaced for examiners that were retained prior to the enactment of the legislation on June 11, 2019. Since there is no language in the amendments to the No-Fault Act making them “retroactive” as it relates to the requirements of IME experts, it can be assumed that any examiner retained for medical opinion prior to the enactment date is valid without fulfilling the amended requirements. It is anticipated that the amended language will be challenged at some point down the road. However, until that time, the new provisions of MCL 500.3151 must be strictly applied as written.
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