If you have been injured in an accident, you may be seeking compensation from your Michigan auto insurance or damages from the at-fault driver for your car accident injury. Unfortunately, the insurance company may go to great lengths to avoid payouts. One of the approaches they use is an independent medical exam, or IME.
It may sound harmless when they request that you attend an IME, but it is a common tactic to reduce or eliminate the damages they must pay out to accident victims. That is why at Matz Injury Law, we prefer to call them defensive medical exams or DMEs. These defensive medical exams are not neutral or fair and are not meant to help your case. Rather, they are intended to undercut your claim and defend the insurance company’s bottom line.
Do not let the insurance provider get away with this. Learn what an independent medical exam entails, what you can do to prepare yourself for one, and how a knowledgeable and experienced Michigan personal injury attorney can help you fight for the compensation you deserve.
If you have no-fault insurance coverage in Michigan, your insurance carrier may delay paying your medical, wage loss, and other no-fault benefits until you have been seen by a doctor chosen by the insurance company. This is called an “independent medical examination,” which is permitted by section 3151 of the No-Fault Law. However, at Matz Injury Law, we prefer to call them defensive medical exams, or DMEs, to emphasize that these medical exams are often biased in defense of the insurance company.
Michigan has specific laws about defensive medical exams that you must follow.
Any time you file a claim against your no-fault insurance policy for personal injury protection (PIP) benefits, your insurer can request that you submit to a mental or physical examination. This examination is the defensive medical exam (DME).
Under Michigan state law, the person who conducts this examination must be a licensed physician. In addition, they must specialize in the same area as the physician providing your care if you are receiving specialized care. In the past year, they must have also devoted a majority of their time to practicing active clinical medicine (and to the relevant specialty area, if any) or teaching as an instructor in an accredited medical school, residency, or research program.
If you are suing an at-fault driver for additional damages, including economic and non-economic damages like pain and suffering, the defendant’s insurance provider can request a defensive medical exam. The examining physician must meet the same legal requirements as a no-fault defensive medical exam. If you are receiving specialized care, they must specialize in the same area as your caring physician. They must also have spent most of their time in the past year practicing clinical medicine or teaching at an accredited medical school, residency, or research program.
The purported purpose of the medical examination is to have an impartial, independent doctor verify the extent of your injuries, determine whether they were caused by the accident, decide whether you require ongoing treatment, and decide whether you can return to work. In truth, they are far from impartial.
These exams are a way for insurance companies to argue against your claim and reduce or eliminate the amount they must pay. The defensive medical exam doctor cannot treat you, prescribe medication, or write you a work notice. Never request any of these services from the DME doctor. If you do, the insurance company may accuse you of “drug-seeking behavior” or otherwise use your requests against you.
When you face a defensive medical exam, listen to the advice of your personal injury lawyer. This area of law is very fact-specific, so the advice an attorney might give one client could be the exact opposite of what they tell another. Defensive medical exams can be separated into two categories. The first is a PIP defensive medical exam, which is ordered by your auto insurance carrier and usually occurs before you file a lawsuit.
The second is a third-party defensive medical exam, which will be scheduled at the request of the person you are suing. Basically, for third-party defensive medical exams, if you are alleging that someone else’s acts have injured a specific body part, that person is entitled to have you examined by an expert of their choosing and to have that expert give their opinion as to whether the claims you make are accurate. If, as a plaintiff, you believe that the defensive medical exam doctor is biased, your attorney will cross-examine them regarding their qualifications. However, the doctor will not be barred from testifying.
A PIP defensive medical exam is quite different. First, the revised no-fault act has criteria that people performing defensive medical exams must meet, such as teaching or seeing patients at least 50 percent of the time, so doctors can’t have an entire practice of doing just defensive medical exams. For PIP defensive medical exams, the defensive medical exam doctor’s opinion will be used to extend or cut off your PIP benefits. If they are cut off and you disagree with the doctor’s opinion, your attorney can help you file a lawsuit.
In PIP defensive medical exams, there is a doctrine called “mend the hold,” which means that if a PIP carrier cuts someone off, they cannot amend their reasoning after litigation begins. They must establish the basis for the cut-off in advance.
You may think that since you paid for no-fault coverage, your insurance company should pay your medical and wage loss claims without arguing. However, it doesn’t work that way. Your no-fault carrier is only required to pay your benefits for so long as the insurance company believes that the expenses are reasonable, necessary, and related to the accident. They must agree that all three of these are true, or they won’t pay.
Often, what insurance companies do is set you up for an examination with a doctor who will probably find that:
Any of those approaches will give the insurance company the right not to pay you or your doctors. These tactics drive many people to seek the advice of lawyers who handle Michigan no-fault cases.
Perhaps you are considering not attending the defensive medical exam, so the insurance company has no evidence to justify withholding your payments.
The insurance company can’t make you go to a doctor, but they can stop paying your benefits if you don’t go. Your policy probably contains a clause that says they have the right to send you for an evaluation, and Michigan courts have ruled that the no-fault law requires you to cooperate with efforts to have you evaluated.
If you have been cut off from no-fault benefits after a defensive medical exam or have been told that you have been set up for such an exam by your no-fault adjuster, please consult a lawyer who practices no-fault law in Michigan immediately. There are steps you can take to protect yourself from some of the risks.
In a third-party case, skipping a defensive medical exam can lead to losing your case. Skipping or refusing a defensive medical exam in a third-party case will likely lead to your case being dismissed for failure to comply with a court order.
In PIP claims with your own insurance company, some circumstances do enable you to refuse a requested defensive medical exam. If the insurance provider requests a defensive medical exam before canceling your benefits, you should attend after seeking the advice of your attorney. It is another story if they schedule a defensive medical exam after canceling benefits.
We once handled a case where our client’s PIP benefits were cut off based on the insurance adjuster’s interpretation of their medical records. The PIP carrier never requested a defensive medical exam. Our Michigan law firm filed a lawsuit asking for benefits to be reinstated and past benefits to be paid with interest.
In this type of case, if the insurer schedules a defensive medical exam, the car accident lawyers will advise them not to attend, and the PIP carrier cannot use this refusal against them. This is because the insurance company breached the contract first and cannot now “mend the hold” to come up with a later legitimate basis for the denial.
The steps to prepare for a DME are the same as almost any other legal requirement. Be on time and well-groomed, as they may take photos and report on your appearance. Do not submit any paperwork before your lawyer reviews it to see if it is legally required. Be sure you do not put anything in writing that can damage your case.
Do not sign an open-ended release for the defensive medical exam doctor to review your medical records. Specify the specific records they can access and limit them to those relevant to your accident. If you are uncertain, have your lawyer handle these releases. You should never sign anything without first seeking your car crash injury lawyer’s advice.
If you are allowed to, bring a friend for moral support, a medical professional who is on your side, or even your attorney to back you up. Also, if you are allowed, record the examination.
Cooperate with the defensive medical exam doctor and provide honest answers. Be polite, but never offer additional information, and do not chat with them. Defensive medical exam doctors often use casual chat to coax information out of patients. Do not describe how the injury occurred to the doctor. They will likely use this information to undermine your claim. They can get your incident report from the insurance company if they need to know how the accident happened.
The insurance company requesting the defensive medical exam should pay the doctor to perform the exam for you. You should never be billed, and neither should your health insurance. The defensive medical exam is not part of your regular medical care or medical expenses and should not increase your medical bills. If they try to bill you, immediately contact your Michigan car accident lawyer for help.
Yes, you are entitled to a copy of your medical examination report. This will likely be mailed to either you or your attorney within a few weeks following the exam. Review your copy closely for inaccuracies. If you find any, consult your attorney right away. They can use this information when they perform a cross-examination during the doctor’s sworn testimony.
You can challenge your medical exam results if they are incorrect or unfair. If the doctor’s conclusions are based on misinformation, you can write to the doctor and the insurance to update the medical document to reflect the correct information. Your doctor’s medical evaluation, your treatment plan with your treating physician, and any other non-DME medical information and documentation can be used to combat the inaccuracies and minimizations in the defensive medical exam report.
When this happens, your attorney at the Matz Injury Law law office will send a letter to your treating doctor. This letter requests a rebuttal indicating how you were injured, how the injury was related to the crash, and how the treatment has been reasonable and necessary. Sometimes clients have multiple injuries to various body parts, so it is vital to make sure that the doctors who disagree have the same specialty area as the defensive medical exam doctor.
Juries give much more weight to the opinions of treating doctors who spend time with patients rather than defensive medical exam doctors who see the patient for as little as four minutes in some cases.
You can also challenge the impartiality of the DME/IME doctor. You can request information on how many defensive medical exams the doctor has done for the insurance company in recent years, how much time they spend conducting defensive medical exams as opposed to providing patient care, how much they charge for an exam, and how much of their income is gained from defensive medical exams. Your Michigan car accident lawyer can handle these requests.
The right Michigan car accident injury attorney can help protect your rights in many ways. They can prepare you for the defensive medical exam by assembling relevant medical records and documentation. They can coach you on what the defensive medical exam legally requires from you and what it does not. They can help you dispute inaccuracies in the defensive medical exam, the impartiality of the examining doctor, and the conclusions reached during the defensive medical exam.
They can compare the liability-focused evaluation of the defensive medical exam to your physician’s care-focused evaluation to discover discrepancies that need to be challenged. Your attorney can also communicate with insurance adjusters and insurance providers on your behalf and represent you to argue for your deserved compensation in court if necessary.
If you are having trouble with personal injury claims where a car insurance company is using a defensive medical exam to deny your car insurance benefits, an automobile accident attorney from Matz Injury Law can provide the legal advice and representation you need. No injured person should worry about getting the medical treatment they need after an auto accident, and no claimant should worry about their no-fault PIP benefits being canceled for no good reason.
At Matz Injury Law, we are well-versed in Michigan no-fault law and tort law. We have represented many people in your position who are fighting an auto insurance company‘s claim that the motor vehicle accident victim’s bodily injury or impairments are not as bad as they seem, that they have pre-existing injuries, or that their car accident case is invalid. We have dealt with cases involving uninsured motorists, bad-faith cancellations, medical malpractice related to defensive medical exams, and all manner of issues related to car accident cases.
From a back injury to a brain injury, broken bones, or paralysis, we are ready to stand tall with you. We understand court rules and will fight for you every step of the way. Contact us today by calling 1-866-22Not33 or using our online contact form to set up your free consultation.
Steven J. Matz is a founding shareholder of Matz Injury Law. The firm’s concentration is on personal injury litigation, with an emphasis on traumatic brain injury.
The maximum contingency fee permitted by law is actually 331/3%. Michigan court rules require that the attorney fee be computed on the net sum recovered after deducting all disbursements properly chargeable to the enforcement of the claim.
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