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Videotaping insurance defense doctors: A legal Catch-22 for attorneys, accident victims

April 12, 2016 by Steven M. Gursten

Michigan law requires ‘good cause’ to videotape an IME, yet attorneys effectively need the videotape of an IME to show ‘good cause’ with most judges

A still from my videotaped deposition of IME Dr. Rosalind Griffin
A still from my videotaped deposition of IME Dr. Rosalind Griffin

Last week, I spoke at NABIS, the North American Brain Injury Society, on protecting TBI survivors from defense attacks.  At the top of my list of suggestions is that attorneys should be fighting harder to record these so-called “independent medical exams.”  The amount of fraud and abuse I see today as an attorney at the hands of these defense doctors is staggering. And the only way to protect the integrity of the process, and our clients, when a doctor (who’s making vast amounts of money to perform hundreds of these one-time defense and insurance medical exams) is to record it.

There’s really no good reason why IMEs should not be videotaped.

But, there are plenty of excellent reasons why IME exams should be videotaped.

How can an attorney prove a doctor is lying if you cannot record the IME/insurance medical exam?

The reality today is that far too many so-called “independent” medical examinations of auto accident victims are nothing more than cut-off examinations by a “hired gun” doctor, hired by either the No Fault or workers’ compensation insurance company, or by the insurance defense lawyers.

If one of these doctors is willing to lie under oath about what a person allegedly told them, the jury is left to guess which one is telling the truth. While these doctors have real bias and motivation to lie (because they’re often making staggering amounts performing these exams), and while these No Fault insurance companies and the claims adjusters have great incentive to find the most notorious and biased doctors they can (because the doctor can give a reason for the auto insurer to stop paying auto No Fault insurance benefits, such as wage loss and medical care), far too often it’s the jury who believes it is the plaintiff – a personal injury claimant who is seeking money – who has the greater incentive to lie.

Why do we unnecessarily undermine the integrity of our civil justice system – a system that is designed to uncover the truth – and leave a jury to guess which side has greater motivation to lie?

Videotaping these insurance medical exams will lay bare the reality of what’s really going on.

Unfortunately, the law doesn’t take such a common-sense approach to videotaping IMEs. In Michigan, for example, videotaping IMEs for automobile accident attorneys is truly a legal Catch-22:

  • “Good cause” must be shown to get a court order to videotape an IME doctor.
  • But for most judges who are predisposed NOT to grant these motions to record, attorneys need the evidentiary equivalent of video proof from one of the IME doctor’s previous victims to make a “good cause” showing.

This is absurd. It must change!

A better way to protect automobile accident victims from IME and “cut-off” doctor abuse

I believe Michigan should follow the lead of forward-thinking states like Florida, Oklahoma, Arizona and California, which all allow accident attorneys the right to record IME exams to protect the integrity of the process. All the time, we’re learning more about the abuses that are taking place behind closed IME doors. Videotaping is the solution to ending IME abuse and restoring justice and fairness to the legal process for auto accident victims.

A perfect example is my own battle with IME Dr. Rosalind Griffin.

Dr. Griffin wrote a report, and testified under oath, that my client said certain things to her, things that all would have considerably helped the defense lawyers and the trucking company that caused the truck accident that injured my client. Upon reviewing the videotape of the underlying exam, it became clear my client never said these things.

Without the videotape, how could I ever have proved that my client had never made these so-called “admissions” to Dr. Griffin, such as that he was improving and getting better? As I wrote in a blog post, “Sticks and stones and…attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?”:

“My client had been rear-ended by a truck. He suffered shattered vertebral discs in his spine and other serious physical injuries. He also suffered a significant traumatic brain injury. The stakes could not have been any higher for my client. If a jury had believed Dr. Griffin’s testimony, my client could  have received far less pain and suffering compensation for his injuries then he deserved. Would a jury believe Dr. Griffin? Thankfully, Dr. Griffin’s independent medical exam with my client had been recorded. You can read it for yourself in the trial transcript to see what my client told her. It is very different from what she testified my client said to her under oath.”

To learn more, please check out my blog posts:

Michigan law on allowing attorneys to videotape IMEs

Under Michigan’s No Fault auto insurance law, auto accident victims may be required to submit to independent medical examinations of their mental and/or physical condition:

“When the mental or physical condition of a person is material to a claim that has been or may be made for past or future personal protection insurance benefits, the person shall submit to mental or physical examination by physicians.” (MCL 500.3151)

In Muci v. State Farm Mutual Automobile Insurance Company (2007), the Michigan Supreme Court reversed a trial court’s order imposing conditions on a medical examination that State Farm was compelling an auto accident victim to undergo. One of those conditions was that the auto accident victim be permitted “to record the examination by means of simultaneous audio and visual recording.” The Supreme Court concluded that conditions – such as videotaping – could not be imposed on an IME unless the auto accident victim can:

“[D]emonstrate good cause that submission to a particular examination will cause annoyance, embarrassment, or oppression ….”

How to protect your legal rights if you’re required to submit to an IME

Muci is a bad case for injured auto accident victims and the attorneys who represent them.

It places the burden  on the injured claimant to prove the need for safeguards.    However, there are important and helpful things about Muci that auto accident victims and their lawyers need to know. Shortly after the Muci ruling was issued, I made the following points in my blog post and after an ICLE No Fault Summit legal seminar: “When Life Gives You Lemons: The Positive Side to Muci v. State Farm”:

  • “Muci is very limited in scope and applies to first party no fault automobile negligence cases only. It does not affect third party [auto accident] cases for pain and suffering … lawyers can still go to court seeking protections and reasonable conditions on the scope of insurance medical examinations under the Michigan Court Rule, MCR 2.311.”
  • “[U]nder [Muci’s] reasoning, insurance companies should not be entitled to IMEs with anyone who is not a physician. This means no more compulsory no fault insurance medical examinations with neuropsychologists, chiropractors, vocational rehabilitation experts and anyone else who is not a physician. Why? According to the Michigan Supreme Court in Muci, the Michigan No Fault Act is entirely self-contained, and the Michigan No Fault Act only allows for insurance medical examinations with physicians. MCL 500.3151. In fact, MCL 500.3151 refers to mental or physical examinations only. If, as the Supreme Court writes in Muci, that is what the Legislature solely intended, then that is all an insurance company should now be entitled. This means no more IME examinations of any kind that include testing: no more EMGs, x-rays, MRIs, or diagnostic testing of any kind. It also means people who are injured in car accidents and sent to these compulsory insurance company IMEs are no longer required to fill out those tedious ten and twenty page auto accident questionnaires that so many of these IME doctors require injured people to fill out. The No Fault Act says only mental or physical examinations, and allowing any type of testing – whether vocational, neuropsychological, etc. should now be ‘entirely antithetical’ and no longer required after Muci v. State Farm.”

I will continue this topic with some ideas for IME reform.

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