IME Conditions may Include Video Recording
Name: Schaumann- Beltran v. Gemmete
Court/Judge: Michigan Supreme Court – Order on Application for Leave to Appeal.
Issued: May 13, 2022
The Michigan Supreme Court recently issued a ruling in the matter of Schaumann- Beltran v. Gemmete, holding that under MCR 2.311(A), trial courts have the discretionary authority to direct that a physical or mental examination be videorecorded. The Court of Appeals previously construed the language of MCR 2.311(A), which provides that an attorney "may be present at the examination", as a grant of power to a trial court which may only be exercised in the manner stated, which is an in-person presence at the examination. The Supreme Court disagreed, stating that the language of the last sentence does nothing to limit a trial courts authority to establish other "conditions" of an examination. As a result, it is apparent trial courts have the discretionary authority to require an examination be videorecorded as a condition of the examination. However, in the case at issue the Court of Appeals did not consider whether requiring such a condition was an abuse of discretion based on the particular facts of the case and the Supreme Court remanded the case to address that argument.
The holding of this case will likely have a negative effect on Independent Medical Examinations ("IME). Many examiners will refuse their services if they are required to record the examination. As the Supreme Court noted in their opinion, many physicians already object to performing an examination in the presence of an attorney. For example, neuropsychologists have specific technics that are confidential work product, and they will not perform testing in the presence of an attorney, and so they would certainly object to a videorecording. If more physicians refuse to offer their services due to this condition, it could very well be an enormous hindrance to timely and effectively litigating injury cases in Michigan.
Additionally, as a result of the opinion, the Trial Court has the apparent discretionary authority to impose whatever conditions on that examination that the Court finds reasonable based on the facts of a particular case. The Supreme Court suggests that the trial court has the discretionary authority to approve any conditions they determine are appropriate under the circumstances, which creates much uncertainty as to what conditions future courts may impose on examinations.
However, there may be some hope for solace from this predicament as the case was remanded to the Court of Appeals to decide whether the facts of the case warranted a videorecorded examination. Further observation of the development related to this discretionary authority will be necessary to determine was conditions are, or are not, reasonable. The decision of the Court of appeals in this matter on remand may provide further clarification on this issue. Therefore, we must be alert and diligent in observing the outcomes of these future decisions.