The Supreme Court and "independent medical examinations"

This week the conservative four-member majority of Michigan's Supreme Court issued a new ruling on independent medical examinations (IME's).  It was presented with a controversy regarding an examination scheduled by State Farm.  State Farm had set the examination with a doctor whom it consulted regularly, and who had previously violated the attorney-client privilege during examinations by inquiring into the insured's conversations with her attorney.

The IME came up in the context of litigation over personal injury protection (PIP) benefits sought by the insured after a motor vehicle collision.  State Farm had denied payment and the insured had initiated suit.  After suit was started State Farm compelled the insured to attend the IME at its' doctor's office.  Faced with the history of inappropriate questioning by this doctor, the trial judge relied upon the Court Rule governing IMEs in personal injury litigation to impose certain conditions upon the examination.  State Farm did not claim that the conditions were unreasonable:  it claimed and "unconditional right" to an examination...without regard to "good cause".  It maintained that the Court Rule regarding IMEs in litigation should not apply to a no fault insurance claimant and that the only requirements should be those contained in the parties' insurance contract.  The trial judge and the Court of Appeals rejected this claim and ruled that all IMEs are subject to the court rule.

The four members of the Supreme Court who have been regularly criticized for pandering to the insurance industry overturned the lower courts' rulings and held that State Farm was not required to meet the conditions imposed by the trial court.  The four members suggested that the rights of the no fault insured were limited to the insurance policy and two limited provisions in the no fault act.  It held that no fault insureds don't enjoy the normal court rule protections incorporated into personal injury actions.

The insurance-oriented majority held that "physicians are presumed to be bound by the methodologies of ther profession and by principles of professional integrity" and that until an insured submits to the court demonstrable evidence to rebut this presumption, a court may not impose conditions on the conduct of a no fault IME.

As a result of the Court's decision, fewer insureds will have the protections which were assumed to apply to IMEs and insurance-retained physicians will be entitled to stretch the envelope in their dealings with injured victims.  We believe, along with the majority of judges who considered this issue (3 in the Supreme Court, two in the Court of Appeals and one in the trial court) that there was no rational or statutory basis to deny the carefully considered court rule protection framework to all injury claimants.  The protections in the Court Rule impose basic obligations such as requiring the IME insurer to provide a copy of the resulting report to the victim.