Home Medical Malpractice Interpreting The New Ime Requirements Under The Amended No-Fault Act Through An Analysis Of Medical-Malpractice Law – Insurance Laws and Products

Interpreting The New Ime Requirements Under The Amended No-Fault Act Through An Analysis Of Medical-Malpractice Law – Insurance Laws and Products

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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.

In its present form, subsection (2)(a) provides:

If care is being provided to the person to be examined by a
specialist, the examining physician must specialize in the same
specialty as the physician providing the care, and if the physician
providing the care is board certified in the specialty, the
examining physician must be board certified in that
specialty.6

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:

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 of the following:

(i) The active clinical practice of medicine and,
if subdivision (a) applies, the active clinical practice
relevant to the specialty
.

(ii) The instruction of students in an accredited medical
school or in an accredited residency or clinical research program
for physicians and, if subdivision (a) applies, the
instruction of students is in the specialty
. [Emphasis
added.]

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:

(A) Order for Examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the
custody or under the legal control of a party, is in controversy,
the court in which the action is pending may order the party to
submit to a physical or mental or blood examination by a physician
(or other appropriate professional) or to produce for examination
the person in the party’s custody or legal control. The order
may be entered only on motion for good cause with notice to the
person to be examined and to all parties. The order must specify
the time, place, manner, conditions, and scope of the examination
and the person or persons by whom it is to be made, and may provide
that the attorney for the person to be examined may be present at
the examination.

47. 478 Mich 178; 732 NW2d 88 (2007).

48. Id. at 190-191.

49. Id. at 191.

50. See 2019 PA 21, 22.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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