United States: Interpreting The New Ime Requirements Under The Amended No-Fault Act Through An Analysis Of Medical-Malpractice Law

Executive Summary

As one of the first states to adopt a no-fault automobile insurance system, the Michigan no fault act is often looked to as a model for this type of auto-reparation scheme. The Legislature's comprehensive changes to the no-fault act have left many wondering how these changes will impact litigation.¹ This is especially so when it comes to MCL 500.3151, the section governing independent physical and mental examinations. This statute provides that a physician performing an independent medical evaluation must meet specific criteria. Although Michigan's appellate courts have yet to address the application of this statute, a look at the Courts' interpretation of Michigan's expert qualification statute in medical malpractice actions, MCL 600.2169, may provide valuable insight as to how appellate courts will interpret MCL 500.3151.

Introduction

As one of the first states to adopt a no-fault automobile insurance system, the Michigan no fault act is often looked to as a model for this type of auto-reparation scheme. The Legislature's comprehensive changes to the no-fault act have left many wondering how these changes will impact litigation.² This is especially so when it comes to MCL 500.3151, the section governing independent physical and mental examinations.

The first clause of § 3151 remains essentially the same, but a new subsection includes several requirements that a physician must satisfy to conduct an insurer-requested independent medical evaluation (IME).

When it comes to interpreting any statute, the text is the natural starting point for inquiry into its meaning. Courts are required to consider the plain meaning of the critical words as well as the statute's placement and purpose in the statutory scheme.³ But a statute's perceived purpose cannot overcome its plain meaning—the language of the statute is paramount.⁴

Michigan's appellate courts have not yet had an opportunity to consider the amended language under § 3151. Consequently, trial courts must apply the new provisions as written without guidance from the higher courts. But a reasoned interpretation of these provisions does not require starting from scratch.

Conveniently, the requirements recently adopted into Michigan's amended no-fault act mirror similar provisions found in MCL 600.2169. That statute lays out several requirements for expert witnesses in medical-malpractice actions.⁵ An analysis of case law in that context offers a practical guide for how Michigan's appellate courts will likely define, interpret, and apply § 3151 in its present form. Equally instructive are the textual differences between § 3151 and § 2169, which reflect dissimilar legislative intent and, consequently, direct different results.

In the end, this article aims to provide an examination of comparable statutes and instructive case law, tempered by an appreciation for the different contexts, to better equip no-fault practitioners to recognize, obtain, and defend valid IME opinions.

The Qualification-Matching Requirement

A physician performing an IME of an injured claimant must now satisfy the qualification matching requirements under § 3151(2)(a) if the claimant's treating physician is a specialist. As a general matter, an IME physician's practice must match the practice of the insured's treating physician.

The statute does not define “specialty” or “board certified,” but its use of those terms mirrors the requirements under § 2169 for an expert witness in medical-malpractice cases.

In relevant part, § 2169(1)(a) states that “a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in [Michigan] or another state and meets” two basic criteria. First, “if the [treating physician being sued for malpractice] is a specialist,” the expert must “specialize[] at the time of the occurrence that is the basis for the action in the same specialty as the [defendant treating physician].”⁷ Additionally, if the defendant is a specialist who is board-certified, the expert witness must be board certified in the same specialty.⁸

The Michigan Supreme Court examined “specialty” within the framework of § 2169 in Woodard v Custer. ⁹ The court defined the term as “a particular branch of medicine or surgery in which one can potentially become board certified.”¹⁰ Relying on the plain language of § 2169, Woodard also concluded that “[a] subspecialty, although a more particularized specialty, is nevertheless a specialty” because it is also a branch of medicine or surgery in which a practitioner may become board certified.¹¹ Woodard further explained that a physician is “board certified” in the context of § 2169(1)(a) if they “have received certification from an official group of persons who direct or supervise the practice of medicine that provides evidence of one's medical qualifications.”¹² So, “if a defendant physician has received certification from a medical organization to this effect, the plaintiff's expert witness must have obtained the same certification in order to be qualified to testify concerning the appropriate standard of medical practice or care.”¹³ Correspondingly, in the no-fault context, if a treating physician has received certification in a specialty or subspecialty, an IME physician must have the same certification.

The qualification-matching requirement in both statutes refers to “the same specialty” and “that specialty,” as opposed to “the same specialties” and “those specialties.” The singular language shows a legislative intent to require matching of a single specialty (and, if applicable, a single board certification), not multiple specialties.¹⁴ Woodard similarly held that § 2169 requires a plaintiff's expert witness to “match the one most relevant standard of practice or care,” i.e., “the specialty [or subspecialty] engaged in by the defendant physician during the course of the alleged malpractice[.]” ¹⁵ Correspondingly, if the defendant physician was board certified in the “one most relevant” specialty at the time of the alleged malpractice, “the expert witness must also be board certified in that specialty.”¹⁶

By way of example, the defendant physician in Woodard specialized in pediatrics, with subspecialties in neonatal and pediatric critical care medicine.¹⁷ The plaintiff's proposed expert specialized in pediatrics but not in the same subspecialties as the defendant.¹⁸ The Supreme Court concluded that the “defendant physician was practicing pediatric critical care medicine”—one of his subspecialties—“at the time of the alleged malpractice, and, thus, pediatric critical care medicine is the one most relevant specialty.” Thus, the Court held that although both experts shared a specialty, the mismatch in subspecialty made the expert unqualified to testify.¹⁹

It is reasonable to infer that courts considering the amended version of § 3151(2)(a) will apply the Woodard Court's reasoning in the no-fault context. Accordingly, an insurer-requested IME physician is now required to match the most relevant specialty that the insured's physician was practicing when they treated the insured. Consequently, it appears that a physical medicine and rehabilitation physician will no longer qualify to examine a claimant whose treating physician specialized in orthopedics during the relevant treatment.

Along related lines, because the qualification-matching requirement is specific to the treating physician's specialty and/or board certification at the time of treatment, an IME physician must limit their examination and testimony to the treating physician's medical practice. For example, if a claimant's treating physician specializes in general orthopedics and the IME physician specializes in general orthopedics and orthopedic spine surgery, the IME physician must limit their examination and testimony to general orthopedics.

If the claimant's treating physician is not a specialist, the qualification-matching requirement does not apply.²⁰ In that case, the IME doctor only needs to be licensed as a physician in Michigan or another state and satisfy the criteria under § 3151(2)(b), discussed next. However, as a practical matter, it is highly improbable that a physician would not be considered a specialist under Woodward. Per the Court's opinion, a “specialist” is “a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice.''”²¹ The American Board of Medical Specialties currently recognizes 169 practice areas for certification.²² And the American Osteopathic Association offers certifications in 106 areas of practice.²³ Included among those are family medicine and internal medicine, both of which are subject to board certification.

The Professional Time Requirement

The next set of new criteria for an insurer-requested IME physician is found in § 3151(2)(b)(i) and (ii). These subsections establish professional time requirements that all IME physicians must satisfy—whether the claimant's treating physician is a specialist or not. Specifically, the statute states, “During the year immediately preceding the examination, the examining physician must have devoted a majority of his or her professional time to either or both” (i) “the active clinical practice of medicine” or (ii) “[t]he instruction of students in an accredited residency or clinical research program for physicians[.]”²⁴ The qualification-matching requirement persists in this subsection as well. If the insured's treating physician is a specialist, the IME physician's “active clinical practice” and/or “instruction of students” must be related to that specialty.²⁵

The Legislature did not define “majority,” “active clinical practice of medicine,” or “instruction of students” in the statute. But these words and phrases are familiar, as they too are akin to the expert-witness requirements for medical-malpractice actions contained in § 2169. Case law interpreting § 2169 defines “majority” as “more than 50%.”²⁶ Accordingly, to perform an insurer-requested IME under § 3151, the examining physician must have spent more than 50% of their professional time in the active clinical practice of medicine and/or the instruction of students. Case law defining “active clinical practice” and “instruction of students” is discussed next.

a) “Active Clinical Practice”

To date, there is only one published case in Michigan that has addressed the meaning of “active clinical practice of medicine.” In Gay v Select Specialty Hosp,²⁷ the Court of Appeals was tasked with determining whether the plaintiff's proposed nursing expert met the qualifications under § 2169. Part of its analysis hinged on whether the expert was engaged in the “active clinical practice” of nursing. At her deposition, the proposed expert testified that she served as the director of education and as an administrator at a hospital.²⁸ Her work included instructing CPR classes, instructing continuing education classes, and orienting new nurses.²⁹ Based on her testimony, the trial court found that she was not engaged in the active clinical practice of nursing because she did not spend the majority of her time directly interacting with patients.³⁰

On appeal, the Court reversed. It broadly defined the phrase “active clinical practice,” clarifying the contours of this requirement. It rejected the trial court's reliance on the fact that the proposed expert was not directly involved in patient care, reasoning that the statute imposes no such requirement. ³¹ The Court explained that the word “active” cannot be construed in this context as requiring the professional to physically interact with patients. Rather, “the word ‘active' must be understood to mean that, as part of his or her normal professional practice at the relevant time, the professional was involved—directly or indirectly—in the care of patients in a clinical setting.”³² The majority explained that while this usually occurs in “a setting where patients are treated,” it is not “the equivalent of stating that a professional must directly interact with patients[.]”³³ Applying those standards, the Court found that the time the proposed expert spent “explaining, coordinating, and instructing nurses about the proper care of patients in a clinical setting” constituted time spent in “active clinical practice” for purposes of § 2169.³⁴

Practically, then, “active clinical practice” is the “actual, day-to-day performance” “of one's profession in a clinical setting.”³⁵ This usually means that the practice occurs in a setting where patients are treated, but § 2169 and § 3151 do not require that the professional physically interact with patients.³⁶ Instead, activities where the professional is involved directly or indirectly in the care of patients in a clinical setting will also count toward the professional time requirement.³⁷

The definition applied in Gay serves as an instructive tool for applying the same phrase in the context of § 3151(2)(b)(i). It is reasonable to assume that the same types of activities identified in Gay will count toward the “active clinical practice” of an IME physician. As such, a physician who spends more than 50% of their time in a supervisory role, e.g., overseeing residents, will likely satisfy the professional time requirement. And, of course, a physician may satisfy the “majority of . . . professional time” requirement by combining time spent in the “active clinical practice of medicine” with time spent in “the instruction of students,” so long as they spend more than 50% of their time between the two.³⁸

b) “Instruction Of Students”

Like “active clinical practice,” case law in the medical-malpractice context has broadly defined the phrase “instruction of students.” When considering the breadth of the statutory phrase, Gay determined that it embraced more than just time spent physically demonstrating or lecturing in front of students.³⁹ The Court recognized that a person who teaches must spend a significant amount of time preparing for class, keeping abreast of current professional techniques, and contributing in other ways that further the educational process.⁴⁰ The Court reasoned that “[s]uch activities are no less ‘devoted' to the ‘instruction of students' than the time actually spent in front of” them.⁴¹

Since Gay is the only case to date interpreting “instruction of students” under § 2169, the opinion provides a great deal of guidance in understanding what activities may qualify under the parallel provision in the no-fault context. For example, if a proposed IME physician authors a textbook considering the basic level of knowledge that a graduate medical student should have mastered, it appears that the time spent on this endeavor in the year proceeding the examination may count towards the new professional time requirement.

The Operation Of MCR 2.311

The amended version of § 3151 may appear to prohibit a no-fault insurer from obtaining an IME by a physician who doesn't match the qualifications of the insured's treating physician.

But the Legislature inserted three important words into § 3151 that are not found in § 2169. This dissimilar language, considered with the rest of the statute, shows that § 3151 does not wholly prevent an insurer from requesting and obtaining an IME by a physician who does not meet the new requirements.

The first clause of § 3151(1) provides, “If 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, at the request of an insurer the person shall submit to mental or physical examination by physicians.”⁴² Subsection (2) then states that a physician who conducts an IME “under this section” must meet the applicable criteria.43 Thus, an insurer may request an IME under § 3151 without court involvement—and the claimant must submit to that IME—as long as the examining physician possesses the qualifications required under the statute.⁴⁴ Unlike § 3151, § 2169 has a broader reach. It mandates that the proffered expert “shall not give . . . testimony” unless they meet the requirements under the statute. This language evidences an intent to provide strict requirements for the admission of any and all expert testimony in medical-malpractice actions.⁴⁵

The glaringly divergent text reveals that the Legislature did not intend to impose the same restrictions under § 3151 and § 2169. Rather, the Legislature's insertion of “under this section” limits the scope of § 3151 and shows that the statute is not intended to be the only way an insurer can obtain an IME. Likewise, nothing in amended § 3151 limits an insurer's ability to obtain an IME for litigation purposes pursuant to MCR 2.311.

In relevant part, MCR 2.311 provides that if the mental or physical condition of a party is in controversy, the court may order the party to submit to a physical or mental examination by an appropriate professional.⁴⁶ So, as long as litigation is pending, a no-fault insurer may move the court for permission to obtain an IME outside of the limitations under § 3151. If the insurer establishes “good cause” for its request, the court may exercise its discretion to allow the IME.

In Muci v State Farm Mutual Aut Ins Co, ⁴⁷ the Michigan Supreme Court addressed how the prior version of § 3151 and MCR 2.311 function together. The Court rejected the claimant's argument that MCR 2.311 alone governs insurer-requested IMEs after litigation is pending. Instead, it concluded that insurer-requested examinations (without prior court approval) fall within the purview of § 3151 and MCL 500.3159.⁴⁸ In its reasoning, the Court stated, “The no-fault act comprehensively addresses the matter of claimant examinations. Accordingly, MCR 2.311 is not applicable to such examinations.”⁴⁹ But nowhere in its opinion did the Court hold that insurers cannot file a motion requesting an IME under MCR 2.311 after litigation is pending. Stated differently, Muci was focused on a claimant's mandatory obligation to submit to an IME requested under § 3151. The Court did not hold that § 3151 denies a no-fault insurer the ability to seek permission to obtain another IME outside of § 3151. Again, nothing in the current version of § 3151 precludes an insurer from utilizing MCR 2.311 to obtain an IME for trial purposes.⁵⁰

In light of these considerations, a no-fault insurer should not forgo an IME by a physician who is more qualified to provide an opinion on the specific issues in a lawsuit compared to a physician who matches the practice of the insured's treating physician. Instead, once the insured commences litigation, insurers should not hesitate to utilize MCR 2.311 to obtain an additional IME for trial-related purposes.

Conclusion

There is no doubt that the amended version of § 3151 is now facing challenges in the courtroom. Because § 3151 and § 2169 include parallel language, medical-malpractice case law serves as an instructive guide for applying § 3151. It's equally important that no-fault attorneys recognize where the similarities between those statutes end and the important implications this has in each context. An understanding of both statutes will likely prove critical to successful litigation under the amended no-fault act.

Footnotes

1. See 2019 PA 21, 22.

2. See 2019 PA 21, 22.

3. Sun Valley v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Baley v United States, 516 US 137 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).

4. Id. at 237.

5. MCL 600.2169.

6. MCL 500.3151(2)(a).

7. MCL 600.2169(1)(a).

8. Id.

9. 476 Mich 545, 561-562; 719 NW2d 842 (2006).

10. Id. at 561.

11. Id. at 561-562.

12. Id. at 564.

13.  Id.

14. Id.

15. Id. at 660 (emphasis added); see also id. at 662.

16. Id. at 660.

17. Id. at 554, 575.

18. Id.

19. Id. at 576

20. MCL 500.3151(2).

21. Woodard, 476 Mich 545, quoting Dorland's Illustrated Medical Dictionary (28th ed).

22. American Board of Medical Specialties, Specialty and Subspecialty Certificates, https://www.abms.org/member-boards/specialty-subspecialty-certificates/ (last visited Nov. 19, 2020).

23.  American Osteopathic Association, AOA Board Certification, https://certification.osteopathic.org/specialties-and-subspecialties/ (last visited Nov. 19, 2020).

24. MCL 500.3151(2) (emphasis added).

25. MCL 500.3151(2)(b) states:

26. Cox v Hartman, 322 Mich App 292, 301; 911 NW2d 219 (2017).

27. 295 Mich App 284; 813 NW2d 354 (2012).

28. Id. at 293-295.

29. Id.

30. Id. at 293-295.

31. Id. at 295-296.

32. Id. at 297.

33.  Id. at 296.

34. Id. at 297-298, 300-301.

35. Id. at 295-297.

36. Id. at 296-297.

37. Id. 

38. See id. at 292, 300-301.

39. Id. at 300.

40. Id. 

41. Id. at 362.

42. MCL 500.3151(1) (emphasis added).

43. MCL 500.3151(2)(a) (emphasis added). In full, the statute states: “A physician who conducts a mental or physical examination under this section must be licensed as a physician in this state or another state and meet the following criteria, as applicable[.]” 44 See also MCL 500.3153 (providing for court orders concerning a claimant's noncompliance with MCL 500.3151).

45. McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).

46. In full, MCR 2.311 states:

47. 478 Mich 178; 732 NW2d 88 (2007).

48. Id. at 190-191.

49. Id. at 191.

50. See 2019 PA 21, 22.

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