Interpreting The New Ime Requirements Under The Amended No-Fault Act Through An Analysis Of Medical-Malpractice Law

• Published date: 29 July 2022
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Trials & Appeals & Compensation
• Law Firm: Collins Einhorn Farrell
• Author: Ms Lynn B. Sholander, Gina M. Derderian and Collins Einhorn Farrell PC

Executive Summary

As one of the first states to adopt a no-fault automobile insurance system, the Michigan no fault act is often looked to as a model for this type of auto-reparation scheme. The Legislature's comprehensive changes to the no-fault act have left many wondering how these changes will impact litigation.¹ This is especially so when it comes to MCL 500.3151, the section governing independent physical and mental examinations. This statute provides that a physician performing an independent medical evaluation must meet specific criteria. Although Michigan's appellate courts have yet to address the application of this statute, a look at the Courts' interpretation of Michigan's expert qualification statute in medical malpractice actions, MCL 600.2169, may provide valuable insight as to how appellate courts will interpret MCL 500.3151.

Introduction

As one of the first states to adopt a no-fault automobile insurance system, the Michigan no fault act is often looked to as a model for this type of auto-reparation scheme. The Legislature's comprehensive changes to the no-fault act have left many wondering how these changes will impact litigation.² This is especially so when it comes to MCL 500.3151, the section governing independent physical and mental examinations.

The first clause of ' 3151 remains essentially the same, but a new subsection includes several requirements that a physician must satisfy to conduct an insurer-requested independent medical evaluation (IME).

When it comes to interpreting any statute, the text is the natural starting point for inquiry into its meaning. Courts are required to consider the plain meaning of the critical words as well as the statute's placement and purpose in the statutory scheme.³ But a statute's perceived purpose cannot overcome its plain meaning'the language of the statute is paramount.⁴

Michigan's appellate courts have not yet had an opportunity to consider the amended language under ' 3151. Consequently, trial courts must apply the new provisions as written without guidance from the higher courts. But a reasoned interpretation of these provisions does not require starting from scratch.

Conveniently, the requirements recently adopted into Michigan's amended no-fault act mirror similar provisions found in MCL 600.2169. That statute lays out several requirements for expert witnesses in medical-malpractice actions.⁵ An analysis of case law in that context offers a practical guide for how Michigan's appellate courts will likely define, interpret, and apply ' 3151 in its present form. Equally instructive are the textual differences between ' 3151 and ' 2169, which reflect dissimilar legislative intent and, consequently, direct different results.

In the end, this article aims to provide an examination of comparable statutes and instructive case law, tempered by an appreciation for the different contexts, to better equip no-fault practitioners to recognize, obtain, and defend valid IME opinions.

The Qualification-Matching Requirement

A physician performing an IME of an injured claimant must now satisfy the qualification matching requirements under ' 3151(2)(a) if the claimant's treating physician is a specialist. As a general matter, an IME physician's practice must match the practice of the insured's treating physician.

In its present form, subsection (2)(a) provides:

If care is being provided to the person to be examined by a specialist, the examining physician must specialize in the same specialty as the physician providing the care, and if the physician providing the care is board certified in the specialty, the examining physician must be board certified in that specialty.⁶

The statute does not define 'specialty' or 'board certified,' but its use of those terms mirrors the requirements under ' 2169 for an expert witness in medical-malpractice cases.

In relevant part, ' 2169(1)(a) states that 'a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in [Michigan] or another state and meets' two basic criteria. First, 'if the [treating physician being sued for malpractice] is a specialist,' the expert must 'specialize[] at the time of the occurrence that is the basis for the action in the same specialty as the [defendant treating physician].'⁷ Additionally, if the defendant is a specialist who is board-certified, the expert witness must be board certified in the same specialty.⁸

The Michigan Supreme Court examined 'specialty' within the framework of ' 2169 in Woodard v Custer. ⁹ The court defined the term as 'a particular branch of medicine or surgery in which one can potentially become board certified.'¹⁰ Relying on the plain language of ' 2169, Woodard also concluded that '[a] subspecialty, although a more particularized specialty, is nevertheless a specialty' because it is also a branch of medicine or surgery in which a practitioner may become board certified.¹¹ Woodard further explained that a physician is 'board certified' in the context of ' 2169(1)(a) if they...