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January 08, 2021
MCR 2.311(A) governs a defendant’s ability to obtain an independent medical evaluation (“IME”) in non-no-fault actions. That court rule vests trial courts with the discretion to order that a plaintiff undergo an IME if the defendant files a motion and establishes “good cause” (i.e., a valid reason) for requesting the IME. It further provides that if the court orders the IME, then the court “must specify the . . . conditions . . . of the examination . . , and may provide that the attorney for the [plaintiff] may be present at the examination.”
In a recent medical malpractice action, Schaumann-Beltran v Gemmete et al., the defendant medical care providers moved pursuant to MCR 2.311(A) for an order compelling the plaintiff to undergo a neuropsychological IME. The trial court granted the motion, but imposed the condition that the IME be video recorded. The defendants appealed, arguing that such video recording would undermine the validity of the IME by tainting the evaluation results, and would also violate ethical standards applicable to the psychologist administering the IME.
The Court of Appeals issued a published decision holding that the trial court had abused its discretion by permitting the IME to be video recorded. In doing so, the Court expressly declined to address the defendants’ practicality and ethical considerations. Instead, the Court resolved the matter on purely textual grounds, holding that video recording is not a “condition” that the trial court can impose upon an IME. Because MCR 2.311(A) provides that a trial court “may provide that the attorney for the [plaintiff] may be present at the examination,” the Court held that the court rule “‘is all inclusive and provides the safeguards necessary to protect the interest of a person to be examined by a doctor for the opposing side.'” Thus, the Court of Appeals “decline[d] to write into the court rule authorization for the trial court to permit video recording of the [IME] when that authorization is not present in the language of the court rule.”
Furthermore, although MCR 2.311(A) specifically authorizes trial courts to do so, and despite the fact that the trial court had not done so in that case, the Court of Appeals went on to seemingly indicate that it will be a rare case in which a trial court’s permitting a plaintiff attorney to attend a neuropsychological IME will not be an abuse of the trial court’s discretion, stating:
[W]e find it difficult to envision under what circumstances, if ever, it would be advisable to have an examinee’s attorney present during a psychological examination. A party conducting the examination is subject to discovery of its expert’s report and its expert is subject to being deposed. We consider that it would be the rare occasion when these discovery mechanisms are insufficient to protect the examinee, and they likewise would appear to provide sufficient discovery tools to the party examined.
It is commonplace for plaintiffs to request that trial courts permit neuropsychological IMEs to occur only if the examination is video recorded or the plaintiff’s attorney is present, and thus it will be interesting to see if Schaumann-Beltran seeks leave to appeal from the Michigan Supreme Court.
 In actions seeking recovery of no-fault personal protection insurance (“PIP”) benefits for injuries arising out of motor vehicle accidents, a no-fault insurer’s ability to obtain an IME is governed by MCL 500.3151 and MCL 500.3159 rather than MCR 2.311(A). Muci v State Farm Mut Auto Ins Co, 478 Mich 178; 732 NW2d 88 (2007).