Comprehensive changes to MCL 500.3151—the statute governing insurer-requested physical and mental examinations under the no-fault act—have prompted insurers and attorneys alike to consider the potential impact that the amendments will have on independent medical evaluations (IMEs). But a reasoned interpretation of the amended statute does not require starting from scratch. Conveniently, the requirements now adopted into Michigan’s no-fault act mirror provisions found in MCL 600.2169, which lays out several criteria for expert witnesses in medical-malpractice actions. Case law applying § 2169 in the medical-malpractice context provides a guide for applying § 3151 in the no-fault context.
The Qualification-Matching Requirement
Essentially, § 3151 now requires an IME physician to practice the same specialty and possess the same board certifications as the insured’s treating physician at the time of treatment. The language used in § 3151 is identical to the qualification-matching requirements found in § 2169. Therefore, case law in the medical-malpractice context provides a blueprint for how Michigan’s appellate courts will likely interpret the amended version of § 3151. For example, in Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006), the Michigan Supreme Court defined “specialty” and “board certified” for purposes of § 2169. It also clarified that the qualification-matching requirements only require an expert witness to “match the one most relevant standard of practice or care,” i.e., “the specialty [or subspecialty] engaged in by the defendant physician during the course of the alleged malpractice[.]” Id. at 660, 662. Consequently, it appears that a physical medicine and rehabilitation physician will no longer qualify to examine a no-fault claimant whose treating physician specialized in orthopedics during the relevant treatment.
The Professional Time Requirement
Subsections 3151(2)(a) and (b) now require that IME physicians devote a majority of their “professional time to either or both” “[t]he active clinical practice of medicine” or “[t]he instruction of students” during the year immediately preceding the examination. The Court of Appeals’ opinion in Gay v Select Specialty Hosp, 295 Mich App 284; 813 NW2d 354 (2012)—another medical-malpractice case analyzing § 2169—broadly defines “active clinical practice” and “instruction of students.” It also provides a useful breakdown of the kinds of activities that may qualify under each category. Since Gay is the only case to date interpreting these statutory phrases, the opinion provides a great deal of guidance in understanding what activities may qualify under the parallel provision in the no-fault context. For example, if a proposed IME physician authors a textbook considering the basic level of knowledge that a graduate medical student should have mastered, it appears that the time spent on this endeavor in the year proceeding the examination may count towards the new professional time requirement.
Important Differences
Section 2169 mandates that an expert “shall not give . . . testimony” in a medical-malpractice action unless they meet the requirements under the statute. The broad language in this provision evidences an intent to provide strict requirements for the admission of any and all expert testimony in medical-malpractice actions. See McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999). Section 3151, on the other hand, states that a physician who performs an IME “under this section” must meet the criteria under the statute. It also contains no language implying that the Legislature intended for this provision to serve as the only means by which a no-fault insurer can require a claimant to attend an IME. So, it’s reasonable to infer that the Legislature did not intend amended § 3151 to impose the same limitations as § 2169. Instead, an insurer retains the ability to move for a court-ordered IME under MCR 2.311 after litigation is pending, even if the selected examiner doesn’t match the practice of the insured’s treating physician.
If you have questions about the new requirements under § 3151, please feel free to contact the author, Gina M. Derderian. More information about Collins Einhorn’s General and Automotive Liability Practice Group is available here.