The ability of an insurer to hire a doctor to perform an independent medical examination (“IME”) as part of its investigation into a claimant’s claim for medical benefits has long been an important tool for investigation. The Michigan Court Rules allow for a physical examination of a party when the person’s condition is in controversy (MCR 2.311) and the relevant statute provides that “[i]f the mental or physical condition of a person is material to a claim that has been or may be made for past or future personal protection insurance benefits, at the request of an insurer the person shall submit to mental or physical examination by physicians.” MCL 500.3151.

Several cases have touched on a role of a physician performing an independent medical examination.  The Michigan Supreme Court’s holding in Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004) addressed the role of a physician performing an independent medical examination of a claimant.  The issue in Dyer was whether a claimant, following an IME, may assert a medical malpractice claim against the physician who performed the IME, given that a traditional physician-patient relationship did not exist in that context.  Dyer, 470 Mich at 48-55, NW2d at 311. The Supreme Court held, under the facts of the case, that a claimant could not assert a medical malpractice claim against the physician.  Whether the holding of the Dyer case was a limited holding and dependent on those facts, or whether it spoke more broadly in terms of limiting any liability of an IME physician, was addressed in a recent unpublished opinion of the Michigan Court of Appeals in the case of Granados-Moreno v Facca.

Granados-Moreno, who was allegedly injured in a motor vehicle accident, filed a claim for no fault benefits with her insurance provider, Progressive.  Progressive requested Granados-Moreno undergo an IME with Dr. Facca, a chiropractor.  While Dr. Facca concluded that Granados-Moreno’s neck pain and headaches were related to the motor vehicle accident, he also opined that Granados-Moreno was exaggerating her symptoms and he did not recommend any continued treatment.  In reliance on the IME report, Progressive terminated Granados-Moreno’s no fault benefits.  Granados-Moreno then filed suit against Progressive, and a settlement was reached with Progressive in 2017.

Notwithstanding the settlement, Granados-Moreno then filed a suit against Dr. Facca in November, 2017, for fraud, tortious interference with a contract, defamation and libel, civil conspiracy to deprive the plaintiff of no fault benefits, and intentional infliction of emotional distress.  Dr. Facca filed a motion for summary disposition in reliance on our Supreme Court’s holding in Dyer, arguing that he was not liable to Granados-Moreno as a result of the conclusions or opinions he reached based on his examination.  For her part, Granados-Moreno argued that the Dyer court did not conclude or hold that a physician who conducts an IME could never be liable for his opinions.  The trial court granted Dr. Facca’s motion for summary disposition, but the Court of Appeals, in a two-to-one unpublished decision, reversed and remanded to the trial court for further proceedings.

The Court of Appeals majority found that  the issue in Dyer was limited to whether a claimant can assert a medical malpractice claim against a physician who performed an IME when a traditional physician patient relationship did not exist.  In this case, the claimant sued for tortious interference with a contract (among other claims), but there was no claim of medical malpractice.

The Court of Appeals majority continued its analysis of the Dyer opinion and identified certain portions of the opinion that it believed constitute “dictum” and an “extraneous statement” not necessary to the decision.  The Court of Appeals specifically found that “our Supreme Court’s statement in Dyer that ‘[t]he IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports,” is dictum”.  It further described the quote from Dyer as an “extraneous statement” unnecessary to the holding in the case. The dissenting Court of Appeals Judgedisputed that the Dyer decision was mere dicta, and opined that even if it was, the Dyer decision provided significant and persuasive reasoning in support of the conclusion an IME doctor cannot be liable to a claimant, relying specifically on the Dyer Court’s statement that the “IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or report.” Dyer at 50, NW2d at 311.

Notably, this is an unpublished non-unanimous opinion so any court can decline to follow it.

The unfortunate result of this decision may be to cause unnecessary apprehension by defense IME doctors to provide opinions contrary to Plaintiff’s case.  There may be reluctance to provide strong opinions in favor of the defense, even despite the evidence, if there is potential that a claimant or examinee may thereafter sue the IME doctor.  Any claimant who believes that his or her benefits were terminated on the basis of an IME opinion, may now have a potentially viable claim against the physician. As of the date this article was published, no appeal of the Court of Appeals’ decision had been filed by defendant, Progressive. Perhaps an Appeal will follow the final disposition of the case on remand.  Garan Lucow Miller will continue to keep you apprised of further developments in this case as they arise.