Critic of Michigan's no-fault auto reform sees positive change in new requirements for medical examiners

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When Michigan Gov. Gretchen Whitmer signed House Bill 4397 (also known as the Auto Reform Bill or No-Fault Reform Act) into law on June 11, 2019, ‘technical fixes’—including more robust requirements on independent medical examiners (IME)—were made to Michigan’s new auto insurance law, which was signed on May 30, 2019. Attorney A. Vince Colella, managing partner and co-founder of Moss & Colella PC, a Southfield-based civil rights and personal injury law firm, has been critical of many of the new auto insurance law’s changes but does credit the clarifications within the HB4397 No-Fault Reform Act on IMEs as a good move to help prevent potential abuse by insurance companies.

“The No-Fault Reform Act provided many significant changes to Michigan’s Auto No-Fault law, but among the most practical changes are the regulations imposed on insurance company-hired independent medical examiners (IME),” Colella said.  “While these baseline requirements may be common sense, they filled a much-needed gap in the Auto No-Fault system that has long been hurting Michigan citizens.”

Specifically, the No-Fault Reform Act provides the following changes to independent medical examiners:

1.) The IME doctors must be licensed in Michigan.

2.) If a specialist is providing medical care to a patient who needs to be examined by an IME, then the IME must also be licensed in the same medical specialty as the specialist providing the care; and if the physician providing the care is board certified in their specialty, then the examining IME physician must also be board certified in that same specialty.

3.) During the year before an IME, the IME doctor must have devoted a majority of professional time to clinical practice of medicine/specialty or teaching in an accredited medical school.

According to Colella, the first two requirements will not make a substantial impact in the legal arena because deficiencies in a medical examiner’s curriculum vitae are often exposed in deposition testimony or cross examination, unlicensed physicians acting outside of their expertise are not likely to hold much weight with juries, and board certification in a specialty is not overly difficult for a carrier to satisfy. The clinical practice requirement, however, will be significant and likely eliminate the windfall that many IMEs had been experiencing.

“Before the new law, insurance company-hired IMEs were left highly unregulated, enabling them to be solely dependent on no-fault litigation and without a clinical practice of their own,” Colella said. “This made it not only feasible, but an extreme financial advantage for IMEs to suspend their clinical practice and focus solely on IME work. They bore no risk for medical malpractice for misdiagnosis and could make twice as much money while doing half of the work by eliminating the hefty cost of medical malpractice insurance necessary to treat patients in clinical practice.”

The No-Fault Reform Act aims to rectify this unreasonable advantage by mandating that all IMEs operate a clinical practice of their own or teach at an accredited medical school, therefore attempting to assure the credibility of these so called “independent” examiners.

“There are major changes in the new auto insurance law that may have extremely adverse impact on some Michigan drivers and passengers, but the tightening of rules surrounding IME’s in the subsequent HB4397 is definitely a positive change,” Colella said.

Colella referred to Michigan’s new auto insurance law as a Tragedy of the Commons in an article published in August 2019 by the legal trade publication Law360.

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