Michigan injury attorney explains what an independent medical examination is and how car accident victims can protect themselves when an IME exam is used to cut-off No-Fault benefits
An independent medical examination (IME exam) is neither “independent” nor “medical.” The doctor is selected by an insurance company. These doctors can make vast sums of money performing these one-time exams. Sadly, the purpose is to create a medical excuse for an insurer to avoid paying on a valid claim.
This video provides a satirical, but not so far-fetched look at what happens for too many seriously injured car accident and truck accident victims when they are sent for an independent medical examination. These exams can be made either by your own auto No-Fault insurance company or, if your case is in litigation, by the insurance company of the at-fault driver who caused your car accident.
Although the video uses humor to highlight the ways in which insurance companies select doctors to abuse the IME process, these exams are very serious, and the consequences for many accident victims with honest and legitimate injuries are often devastating.
In many ways, independent medical examinations represent the very worst of our adversarial civil justice system. Insurance companies do not try to find “independent” doctors. They find examiners who they know ahead of time will try to find a reason to help an insurance company to avoid paying something they should pay. If a case is in litigation, the defense attorney and insurance company can use these opinions to mitigate what they otherwise would have to pay.
As the video shows, these “doctors” – and I have put the word in quotes because most of the IME examiners I have come across clearly violate their own Hippocratic Oaths – will perform hundreds of independent medical examinations a year. They can make hundreds of thousands of dollars every year mostly finding nothing wrong with people or by blaming almost anything other than a car accident for the cause of objective medical injuries. As the video shows, this can include latching on to any so-called “pre-existing” condition or old injury that they can blame for causing the car accident victim’s current medical condition.
There are almost no rules that govern these independent medical examinations, and as an injury lawyer, I’ve personally encountered doctors who perform these exams all the time who seem to quite deliberately lie under oath and who falsify test results.
IME exams are incredibly upsetting for accident victims. They quite literally pile injury on top of injury. Most of these doctors are quite rude and treat the people who are forced to see them in a very condescending way. It’s not unusual for my own clients to wait long past their appointment time in a crowded waiting room full of people sent by defense lawyers and insurance companies to attend these one-time, often very quick examinations.
Even when my clients have called me after these IME exams and said they had a positive impression of the doctor, they are almost always shocked when they receive the report. These reports, usually many pages long even though the underlying IME exams are only 15 to 30 minutes, often accuse car accident victims of lying, faking or exaggerating injuries. It would be shocking, and as I said above it is literally piling harm on top of injury, but remember there is nothing “independent” about these independent medical examinations. Make no mistake – the doctor who has been selected off of a pre-approved list and who is hired by the insurance company to conduct these IME exams is an advocate of the insurance company’s position.
What is an independent medical examination?
In theory, an independent medical examination is supposed to be a medical exam of a car accident victim conducted by an “independent” doctor. The implication is that an insurance company cannot rely on an injury victim’s treating doctor and needs their own examination to provide an accurate opinion about the victim’s actual medical condition, treatment needs, and future prognosis.
In actuality, an independent medical examination is not independent. The independent medical examination is ordered by the victim’s auto insurance company or by the insurance company that insures a party being sued for injury and wrongdoing in a lawsuit.
There is nothing ‘independent’ about an independent medical examination
There is nothing “independent” about an independent medical examination. Here’s why:
- They are always requested by an adverse party. This adverse party wants to keep your auto accident settlement or your claim for No-Fault benefits and future medical costs as low as possible.
- It is conducted by a doctor chosen and paid by the insurance company. In most cases, doing IME exams, one after another, is what these doctors rely on for most of their income. Many have no active treatment practice. This means if they want to keep getting paid (and these one-time exams can be extremely lucrative for doctors who perform IMEs), they have a strong financial bias to write reports in favor of the side that hired them.
- Frequently, the IME doctor will talk to the insurance adjuster or the defense lawyer before conducting the IME exam and/or before writing his or her IME report, to make sure it helps out the insurance company position. It is often not unusual for the IME doctor to send a rough draft to the adjuster or defense lawyer to read.
There is nothing ‘medical’ about an independent medical examination
If we define “medical” as in the ethical practice of medicine, then there is nothing medical about IME exams because their purpose is neither to diagnose nor to treat nor to heal the person who is being forced to be “examined.” The purpose is too often the exact opposite – to help the side that hired them as an instrument that can be used to lower what an insurance company would otherwise have to pay for a reasonable car accident settlement or to pay an outstanding claim for medical bills and auto No-Fault benefits.
As the Michigan Supreme Court observed in its 2004 ruling in Dyer v. Trachtman, independent medical examinations do not involve a “traditional physician-patient relationship” in that the IME physician does not have the responsibility “to diagnose and treat the examinee for medical conditions.”
Tellingly, the Dyer justices explained the IME doctor’s role as follows:
“In the particularized setting of an IME, the physician’s goal is to gather information for the examinee or a third party for use in employment or related financial decisions. It is not to provide a diagnosis or treatment of medical conditions. In addition, the IME physician often examines the patient under circumstances that are adversarial . . .”
As the Michigan Supreme Court has accurately observed, there’s nothing about the IME that is intended to help or aid the person being examined. Instead, the IME is all about the business of mitigating exposure and lowering payouts by saving dollars and cents for the auto insurance company.
What does an independent medical examination consist of?
These are very often cursory, 15- to 30-minute exams that usually consist of a very brief history, a physical examination, and then a report is written for the side that hired them. Often they involve questions about the following:
- The nature of the car accident victim’s injuries and/or medical conditions
- Whether the injuries and/or conditions are related to and/or caused by the car accident
- Whether the treatment the victim is receiving is appropriate
- What treatments are needed in the future
- Whether the victim has reached maximum medical improvement
- The victim’s prognosis
- Whether the victim’s injuries/conditions disable him or her from working, performing household tasks and/or engaging in recreational activities
- The victim’s past medical history
- Whether the victim had any pre-existing medical conditions at the time of the accident
What do I do if my insurance company orders me to go to an independent medical examination?
Tell your attorney immediately. Many times these IME exams are improper and your attorney will be able to confirm that the IME exam request should be allowed to continue or not under the auto No-Fault law, or the applicable court rules if this involves a tort claim for injury and negligence. Some states, including Michigan, also have some minimum standards that an IME doctor must meet first to be able to perform an examination under the law’s qualification requirements.
Your lawyer should also remind you that there is no doctor-patient relationship with an insurance medical examiner. There is no confidentiality. Go in expecting the IME to be looking for ways to hurt your case and to save the insurance company money.
Do I have to go to an IME exam?
Not always. The auto No-Fault law in Michigan gives insurance companies the right to require car accident victims who are seeking No-Fault benefits to “submit to mental or physical examination by physicians” which are commonly known as an “independent medical examinations.” (MCL 500.3151) However, as noted above, there are some limitations on what kind of doctors can perform these examinations. Also a judge has discretion to limit cumulative insurance examinations involving multiple doctors who will testify to the same area or who practice the same area of medicine.
What if I refuse to go to an IME exam?
Well, you cannot be arrested so that’s the good news. Everything else from there is bad news. Refusing to submit to an IME exam can result in serious consequences, including the following:
- A court order prohibiting the car accident victim from making “designated claims or defenses” and/or “prohibiting [the victim] from introducing evidence of mental or physical condition. (MCL 500.3153(b))
- A court order “rendering judgment by default” against the victim for his or her “entire claim or a designated part of it.” (MCL 500.3153(c))
- A court order requiring the victim “to reimburse the insurer for reasonable attorneys’ fees and expenses incurred in defense against the claim.” (MCL 500.3153(d))
What qualifications must an insurance company doctor have to do an independent medical examination?
The requirements that an IME doctor must meet in Michigan are as follows:
- He or she “must be licensed as a physician in this state or another state . . .” (MCL 500.3151(1) and (2))
- If a specialist is treating the car accident victim, then the IME physician “must specialize in the same specialty” as the victim’s treating specialist. (MCL 500.3151(2)(a))
- If a board-certified specialist is treating the victim, then the IME physician “must be board certified in that specialty.” (MCL 500.3151(2)(a))
- “During the year immediately preceding the examination,” the IME physician “must have devoted a majority of his or her professional time to” the “active clinical practice of medicine” (in the same specialty as the victim’s specialist if the circumstances so apply). (MCL 500.3151(2)(b)(i))
- Or the IME physician could have “devoted a majority of his or her professional time to” during the year before the IME teaching at an accredited medical school (in the same specialty as the victim’s specialist if the circumstances so apply). (MCL 500.3151(2)(b)(ii))
What happens after an IME exam?
After an IME exam, the IME doctor will prepare a report. The report will end with his conclusions and recommendations to the insurance company or defense lawyer who selected and hired him.
The insurance company will then use the independent medical examination report to issue its findings to its insured if this involves a first-party No-Fault exam. Often this is accompanied by a “cut –off” letter that informs an insured that he or she will no longer receive wage loss, attendant care, replacement services, and that the insurer will no longer pay for medical treatment.
The IME report can also be used to refuse to pay for medical bills that were already submitted to deny and cut-off the car accident victim’s No-Fault benefits. At this point, an accident victim will need to hire an attorney to help them recover their No-Fault benefits and ability to receive medical care and treatment.
If the IME exam was performed to be used in a third-party or tort lawsuit, then it is used as part of the compromise process of settlement negotiations by the defense attorney and the insurance company to attempt to hold down the settlement value of a case in litigation.
How can you challenge an unfair exam?
I speak at legal seminars across the country on strategies that car accident attorneys can use to help protect their clients from unfair IME exams. I recommend that attorneys always try to record or videotape the examination to protect the insured and to ensure that answers and test results are recorded fairly. Often I tell my own clients to record the examination on their cell phones. It’s also important to note the time that a person was left waiting for the exam and how long the exam took from start to finish. Here are some more aggressive strategies that lawyers can take to challenge an unfair independent medical examination.
Because these are forensic examinations, meaning the doctor is being hired by a party to a lawsuit to examine someone and then report or testify on his findings, it is extremely unlikely to sue an IME doctor for fraud, misconduct, lying, or for “tortious interference” with a contract between you and your auto insurance company for No-Fault benefits after a car accident.
However, such cases are not impossible. I am also aware of one case where a car accident victim was allowed to proceed with her “tortious interference with a contract” lawsuit against an IME doctor whose opinions caused her auto insurance company to cut-off her No-Fault benefits. (See Granados-Moreno v. Facca, Michigan Court of Appeals, #346598, March 3, 2020)
How can an exam be made fairer?
The fairness, accuracy, and reliability of independent medical examinations could be drastically improved – as would the quality of these IME doctors that insurance company adjusters select – if car accident victims were allowed to record their IME exams.
Recording IME exams forces doctors to be more honest. Recording an exam means they can be held accountable if they falsify what people said during the examination, or if they alter test results to favor the side that hired them. In other cases, it has been used during cross-examination to show the tricks and games that IME doctors have used on unsuspecting car accident victims.
Not surprisingly, the IME doctors and the insurance companies tend to fight tooth and nail to prevent recordings of IME exams from occurring, even though recording exams would leave a transparent record that would protect the integrity of the independent medical examination process and better serve the ends of justice.
Personally, I try to explain to judges that recording an IME exam protects the justice process. A jury should not be asked to guess which side is lying when one side is questioning the integrity of the exam or what was said.
How much does an independent medical examination cost?
The car accident victim who is required to submit to an independent medical examination by one of his or her auto insurance company’s hired-gun doctor does not have to pay a fee or a charge. The insurance company that selects and hires the IME doctor is the party responsible for paying for the examination and the doctor’s time in reviewing records and making his or her report or testimony available.
However, that doesn’t mean the IME exam doesn’t come at a steep cost to the car accident victim, as I’ve outlined above. A doctor who gets paid a tremendous amount of money to find nothing wrong with people tends to find nothing wrong with people. For too many innocent and seriously injured auto accident victims, the real cost of the IME exam will be the “cut-off” letter and the attempt by the insurance company to stop paying for all No-Fault benefits that he or she is legally entitled to. At that point, an accident victim has no choice but to hire an attorney to sue for outstanding No-Fault benefits.
Are you being sent to an independent medical examination? Talk to Michigan Auto Law first
If you have been injured in a car accident and you have questions because your No-Fault auto insurance company is forcing you to go to an independent medical examination, call us toll-free anytime 24/7 at (800) 777-0028 for a free consultation with our experienced auto accident attorneys. You can also e-mail and get help from an experienced auto accident attorney by emailing [email protected] or you can use the chat feature on our website.