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Can a companion accompany you to a so-called "independent medical examination"

Michigan auto injury victims are currently placed in a quandary if their no fault insurer wants them to attend an IME and the victim would like to impose some reasonable conditions on his or her attendance.  Up until 2007, it was believed that injury victims enjoyed the right to secure a court's intervention and supervision to assure that so-called independent medical examinations were conducted reasonably and with proper controls.    Those rules still apply to "independent" examinations sought in the context of all other (non-no fault) circumstances. 

Michigan courts have regularly required that the exam be conducted by a specialist reasonably close to the victim or that mileage or overnight expenses be paid.  Other conditions we have seen imposed included a limit on the number or frequency of the examinations, and the right to have a companion accompany the victim or to have the victim's attorney observe the examination, for example.

Then the so-called "Engler majority" of the Michigan Supreme Court reversed the Court of Appeals in Muci v. State Farm, and held that the court ordinarily had no jurisdiction to impose "reasonable conditions" on a no fault insurer's demand for examination:  the conditions written into the policy by the insurer would control (if there were any), and even the existing Court Rules would not be applied to limit the demands of the insurer.  It was this kind of blindly pro-insurance decision that ultimately lead to Justice Taylor's defeat at the polls in 2008.  He has now been replaced, and it is likely that the three-member minority in Muci, who would have allowed the Court to impose reasonable conditions on independent medical examinations, will now be the Court's majority. 

It remains to be seen, however, exactly where a new court majority will draw the line on controlling "independent" examinations, and in the meantime, the law established by the Muci majority would hold that any injury victim who fails to comply with an IME demand may have abandoned his or her right to benefits through non-cooperation.  Thus, a victim who attempts to impose reasonable conditions on the conduct of an auto-injury-related IME acts at his or her own risk--and a considerable risk--until the Muci decision is expressly over-ruled. 

Any injury victim faced with an IME request and seeking to impose some reasonable limitation or condition should act carefully and probably should consult an attorney for advice.  It may be useful to involve the court in the process of defining where, when, how and by whom the examination may be conducted, however, this is an expensive process for a victim who may not have the financial resources or the likely contingent recovery to recruit and retain counsel. 

The Muci majority held that a victim can only impose conditions on the adversarial medical examination sought by the insurer if the victim can demonstrate that the examination will cause the claimant "annoyance, embarrassment, or oppression", with a presumption that the examination will not have this resultFrankly, by its nature, a medical examination scheduled with a stranger in another city by its nature involves annoyance and embarrassment:  the question more rightly is how can this intrusion on the victim's privacy be balanced against the insurer's right to investigate the propriety of treatment ordered by the victim's own medical care providers. 

The Muci majority attempted to dodge this balancing obligation and suggested instead that the balance would be struck in the parties' insurance contract--as though an insured had any meaningful input into the terms of the insurance policy he or she is mailed several weeks after purchasing coverage.  More disconcertingly, the majority expressly held that the pertinent court rule on IMEs does not apply to no fault examinations, denying both the parties and the relevant court of both guidelines and tools to define proper discovery procedures and techniques that had been developed over sixty years of litigation. Oh, Cliff Taylor, "the sleeping judge":  we are not unhappy to see you fired by the voters.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262