Parameters of independent medical examinations of children are discussed
Candice Cardosa suffered gestational or birth injuries resulting in cerebral palsy and hypoxic ischemic encephalopathy. By a Next Friend, she sued Spectrum Health and Butterworth Hospital, along with Area Wide OB/Gyn Services. The doctors' and hospitals' insuerers sought an order requiring her mother to attend the child's three "independent medical examinations" (or IMEs), to answer questions regarding the mother's medical history as well as the child's, and to do this without any attorneys present.
The family's attorney objected. The attorneys noted that the Court Rules do not provide for an IME of a non-party, and that in any event, it would be an abuse of discretion to require the mother to submit to a detailed examination by the Defendants' agents without having an attorney present. When the trial court refused to reconsider its ruling requiring the attendance, the family appealed.
The Court of Appeals first noted that the family had not timely objected to the court assuming jurisdiction over the mother to require her attendance. Therefore, the Court considered that issue moot. Nevertheless, it held that it was an abuse of discretion ("outside the range of principled outcomes") to require the mother to attend the examination and answer detailed questioning ex parte [meaning without a record being preserved and without the presence of an attorney to represent her].The Court considered it to be an appropriate order to require the mother to participate in the examination, generally, in order to facilitate communication with and examination of the young child. It did not find any basis, however, for the Court to require that the mom not have her attorney present or to sacrifice her normal right to due process. It also drew a clear distincition between facilitating the examination of the child, as the girl's guardian, and the investigation of her own personal history.
This case is a good example of the typical Michigan physician/hospital insurers' policy of making the pursuit of a medical malpractice claim as uncomfortable, abusive and expensive for victims' families as possible. The several insurers who manage these cases pretty much think that regardless of merit, defending doctors against malpractice claims is a crusade that should be conducted by "scorched earth" methods. It is ironic that an industry based on the axiom "do no harm" should employ such hostile and destructive methods of evaluating even meritorious legal claims by catastrophically injured victims.