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It’s time to allow Michigan attorneys to record IME exams, insurance defense doctors

April 13, 2016 by Steven M. Gursten

What can be done to stop abuse – and outright perjury – by “independent” medical examiners? Allow recordings of all IME exams and require IME doctors to actually treat patients

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

What do these “hired gun” doctors, and the insurance companies and defense attorneys who hire them, have to hide?

That’s the real question we need to start asking when they vehemently fight to oppose recording IME exams and other measures that can protect the truth and integrity of these exams.

So far, these auto No Fault insurance companies and their “hired gun” independent medical exam (IME) doctors have been avoiding this question, while still steadfast in their refusal to allow recording and videotaping of insurance medical examinations. But if they’re doing everything they’re supposed to in these so-called “independent” medical examinations, and if these doctors who are hired by insurance companies are being honest, accurate and ethical, then they should welcome videotaping – not oppose it.

Recent events, such as my battle with Dr. Rosalind Griffin, says all that needs to be said.

That’s why now is the right time to start recording IME exams as an automatic right, similar to the rights that injury attorneys have in many other states, such as Florida.

This measure will NOT end IME abuse once and for all. But it will considerably help to prevent the outright perjury and material misrepresentations of exam results that many insurance and defense doctors are committing to cash in on the money. It’s time for IME reform and I believe we would do well to begin by implementing the following rules in Michigan:

  • Allow an automatic right to recording or videotaping of IMEs.
  • Require IME doctors to spend the majority of their time actually treating patients.

I will discuss both of these points in greater detail below.

Allow videotaping and/or recording of IME examinations

Michigan needs to abolish its “good cause” requirement and either require videotaping or allow videotaping at an injured auto accident victim’s request.

Indeed, Michigan should follow the lead of states like Florida, Oklahoma, Arizona and California.

As Kate Halloran reported in her AAJ’s “TrialNews” article, “First Amendment protects Michigan attorney’s blog post”:

“Some states … do allow DMEs to be recorded. In 2000, the Supreme Court of Florida ruled in U.S. Security Insurance. Co. v. Cimino (754 So. 2d 697 (Fla. 2000)) that a plaintiff was entitled to have an attorney or videographer present at a DME unless there was a valid reason to deny that right. A 2007 case in the Supreme Court of Oklahoma held that a party required to undergo a DME may record the exam. (Boswell v. Schultz, 175 P.3d 390 (Okla. 2007).) Arizona’s rules of civil procedure allow for audio recording of exams and videotaping if good cause is shown, and California permits audio recording or transcribing of exams.”

Require IME doctors to spend the majority of their time treating patients

Seems like a common-sense requirement, doesn’t it?

Of course it does. But like many things in the world of No Fault auto insurance and IME exams, common sense does not always carry the day.

Take this proposed requirement for instance.

Not only is it not on the books, i.e., it’s not currently required and/or enforced under Michigan law. But it appears that it was specifically considered and rejected. In December 2009, under Rule Set Rule Set 2009-031 LG – the Michigan Insurance Commissioner proposed the following administrative rule for “independent medical examinations”:

“R 500.2252 Physician and health professional requirements. … To be reasonable under … MCL 500.3151 [of Michigan’s No Fault auto insurance law], any clause or provision in an insurance policy form that authorizes or requires an independent medical examination or a physical or mental examination of a person shall not provide for a physician or health professional to perform the examination who fails to meet, at a minimum, the following standards: … (d) Has devoted a majority of his or her professional time, during the year immediately preceding the date of the examination, to active clinical practice, and/or instruction of students in an accredited health professional school or accredited residency or clinical research program, within the medical specialty most relevant to the subject of the independent medical examination.”

In my blog post about the proposed IME rule, “New Michigan IME rule: Insurance doctors must spend a majority of their time treating patients,” I wrote that if the proposed rule were to be enacted:

  • “[T]hese independent medical examiners would ‘have to prove that over half of their expertise is devoted to medical treatment.’”
  • “[T]he case law interpreting the similar provision in the medical malpractice context may be quite helpful in using the new administrative rule to challenge questionable IMEs.”

I explained that this proposed rule, i.e., requiring IME “hired gun” doctors to actually treat patients a “majority” of their time could really put a crimp in the medical businesses – not practices – that they’re operating. For instance, one IME doctor I encountered “testified he had not actually provided medical treatment to traumatic brain injury victims for more than a decade, yet an auto insurance company had paid him to evaluate my client’s TBI …”

An excellent illustration of how IME doctors devote a “majority” of their time to their IME businesses for the insurance companies and not to actually treating patients is the data that’s been revealed through discovery in lawsuits. For example, discovery in a federal lawsuit showed that IME doctor Dr. Edward Trachtman was hired by State Farm to do the approximately 460 IMEs over a five year period. Similarly, discovery in state lawsuit showed the IME neurologist Dr. Leonard Sahn was making $500,000 a year for the one-time exams that insurance companies were paying him to do on accident victims (See “Personal injury attorney advice on “independent” medical examiners in Michigan”).

To read more about IME abuse, please check out the following Michigan Auto Law blog posts:

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