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Independent Medical Evaluations: Are you Entitled to Collect No Show/Cancellation Fees and May an Examinee and his Attorney Place Conditions on your Independent Medical Evaluation Procedures?

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John P. Nicolucci
Foster Swift Health Care Law Report
April 2008

The Michigan Court of Appeals and Supreme Court have addressed both issues in recent published decisions.

No Show Cancellation Fees:

In Roberts v Farmers Ins Exchange, 275 Mich App 58; 737 NW2d 332 (2007), plaintiff, a 12 year old girl involved in a motor vehicle accident, repeatedly cancelled or missed physical and neuropsychological independent medical examinations. The neuropsychological IME physician notified the plaintiff’s insurance company that a $1,000 no show/cancellation charge would be assessed if the plaintiff failed to show at the next scheduled appointment. Plaintiff failed to show up at the appointment.

The trial court ordered that plaintiff and her mother were to pay the $1,000 cancellation fee. The Michigan Court of Appeals affirmed the trial court’s Order finding that the plaintiff failed to present any evidence that plaintiff needed assistance with transportation or that it was impossible for the plaintiff to attend the appointment for some other reason.

Practice Tip: Notify both the insurer and the examinee well in advance of the scheduled independent medical evaluation of the no show/cancellation policy and fee in writing, should the examinee’s failure to attend the examination on one or more occasions become an issue. Doing so may provide the basis for enforcement of the no show/ cancellation fee by a court, should the matter be in litigation.

Examinee’s Requested Conditions on Independent Medical Examination Procedures:

In Muci v State Farm Mutual Automobile Ins Co, 478 Mich 178; 732 NW2d 88 (2007), the Michigan Supreme Court addressed the issue of allowable conditions on a medical examination arising out of an automobile accident. State Farm sought to compel the plaintiff to attend an independent medical evaluation under the Michigan No Fault Insurance Act. Thereafter, plaintiff’s counsel obtained an Order from the trial court stating 19 different conditions to be imposed on the examination, including providing information concerning past compensation for examinations, audio and visual recording of the examination, that the plaintiff not be required to give any oral history of the accident, or oral medical history not related to the areas of injuries claimed in the lawsuit, or to sign or complete any paperwork at the examiner’s office.

The Michigan Supreme Court ruled that such conditions may not be imposed on an examination unless the insured/claimant can demonstrate good cause that submission for a particular examination will cause annoyance, embarrassment, or oppression. The Court stated: "Physicians are presumed to be bound by the methodologies of their profession and by principles of professional integrity. Only with demonstrable evidence that the discovery order or medical examination will cause the claimant annoyance, embarrassment, or oppression can a claimant rebut this presumption. Until this presumption is rebutted, a court may not impose conditions on an examination under section 3159 [of the No-Fault Act]. Muci, at 192; 732 NW2d 88.

The Supreme Court did rule that the plaintiff had offered evidence that the IME doctor had previously engaged in inappropriate questioning and, as a result, the plaintiff established a basis for requesting that the trial court impose conditions requiring that the doctor refrain from engaging in similar questioning during the examination. However, the remaining proposed conditions were not found to be applicable to the examination.

Practice Tip: Challenge proposed conditions requested by the examinee or his counsel on the basis that your examination will not cause the examinee annoyance, embarrassment or oppression. Keep in mind that it is the examinee who bears the burden to present demonstrable evidence that your examination will cause him annoyance, embarrassment or oppression, should the matter be presented to a judge.