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How lawyers can fight back against IME abuse

September 9, 2014 by Steven M. Gursten

Here are 3 strategies that Michigan auto accident attorneys can use  to protect clients when adjusters use biased IME doctors to deny claims

I’ve been writing recently about some of the more rampant and egregious examples I see of insurance companies using notorious and clearly biased doctors to cut-off No Fault benefits to people who often desperately need them (see below).

Here are some musings on how Michigan  lawyers can  fight back against auto insurance companies’ clear abuse using  “independent medical examinations” (IMEs).

These are three strategies I’ve seen attorneys use that can provide some measure of protection against IME doctors who are “wholly lacking in credibility, as well as reliability” as one federal judge put it; and from IME abuse whereby auto insurers cynically use IMEs to concoct justifications for denying and/or cutting-off No Fault benefits:

  • Contempt of court.
  • Court-imposed sanctions.
  • Relief from a judgment based on fraud.

1. Contempt of court

Color me an idealist, and at least for the time being in Michigan, this will not be a pragmatic option for lawyers who litigate auto accident cases with IME doctors.

But contempt of court has been used successfully by auto attorneys in other states for many years. It is a great place to start (if you don’t practice law in Michigan at the moment and won’t face Michigan’s appellate courts) when it comes to options for punishing auto insurance companies for rampant and bad faith IME abuse.

Still, one day it may be as useful in Michigan as it is currently in other states when IME doctors make up things that they say your client said to them during their IME appointments. Yes, this does happen all the time with certain rather notorious IME doctors. If you don’t believe me, here is a trial transcript of my cross examination of Dr. Rosalind Griffen from a very serious truck accident case that I took to trial in Jackson County, Michigan.

Under Michigan law, contempt of court is considered to be:

  • “[A] willful act, omission, or statement that tends to impair the authority or impede the function of a court.” (In re Contempt of Robertson, 209 Mich. App. 433, 436 (1995))
  • “[A]ny deceit or abuse of the process or proceedings of the court” by “[p]arties to the action[].” (MCL 600.1701(d))
  • “[A]ny willful neglect or violation of duty” by the “attorneys …” (MCL 600.1701(c))

I will be moderating a seminar in Chicago later this month on advanced auto accident legal strategies, and it is always bittersweet listening to out-of-state attorneys talking about how the laws in their states better protect people than we have here in Michigan. Nevertheless, if this definition doesn’t meet the definition of “contempt of court,” then nothing will.

In terms of the punishment for “contempt of court,” a court has the “power to punish by fine or imprisonment, or both,” but the fine cannot exceed $7,500 and the period of imprisonment cannot exceed 93 days. (MCL 600.l701; 600.1715(1))

2. Court-imposed sanctions

The punishment should be harsh for subjecting a Michigan court to the disingenuous, misleading and unreliable testimony of an insurance company’s IME doctor.

I’ve written about how we have all been lulled – attorneys, judges, our appellate courts, into just accepting the widespread and massive fraud that IME doctors routinely perpetuate.

We shouldn’t be.

Under Michigan law, an appropriate relief attorneys should be requesting from the court for willful  misconduct may include a court’s dismissal of all defenses and affirmative defenses raised by an auto insurance company (and its lawyers, if it can be shown they are aware of the perjury, or actually are encouraging it). The Michigan Supreme Court has made clear that courts have wide-ranging “dismissal” power to deal with misconduct by litigants (and, presumably, their witnesses):

  • “[T]rial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action. … ‘The authority to dismiss a lawsuit for litigant misconduct is a creature of the ‘clean hands doctrine’ … ‘The authority is rooted in a court’s fundamental interest in protecting its own integrity and that of the judicial process.’”
  • “[E]xpress authority to dismiss … is conferred by statute … MCL 600.611 provides that ‘[c]ircuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts’ jurisdiction and judgments.’” (See Maldonado v. Ford Motor Company, Michigan Supreme Court, #126274, July 31, 2006)

3. Relief from judgment based on fraud

Under Michigan law, an auto accident victim can ask the court for “relief” from a judgment against her if she can show the judgment was obtained through the use of  fraud.

In the context of IME abuse, this may mean the insurer’s hired-gun, IME doctor knowingly lied and/or that the IME was but a ruse to justify the bad faith denial  of no fault PIP benefits. Sadly, lawyers and auto accident victims do not have the laws that protect them from bad faith abuse by insurance companies in Michigan like lawyers do in almost all other states. But no trial judge should be allowing fraud to occur in her courtroom, and when fraud does occur, bringing a motion for relief from judgment based upon fraud is an appropriate legal remedy.

Michigan Court Rule 2.612(C)(1)(c) provides:

“On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds … Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”

The motion for relief from judgment based on “fraud” must be made within one year of the judgment. (MCR 2.612(C)(2))

However, under “[l]ongstanding Michigan case law,” once the motion for relief from judgment based on fraud has been filed, “an evidentiary hearing is required” (See Williams v. Williams, 214 Mich. App. 391, 542 N.W.2d 892 (1996) citing Parlove v. Klein, 37 Mich.App. 537, 544-545, 195 N.W.2d 3 (1972))

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