IME Physicians: Liability for False Statements

The Michigan Court of Appeals dealt with Moreno, who was injured in an auto accident. His no-fault benefits were suspended after the IME physician wrote in his report that he was exaggerating his symptoms and did not need additional treatment. Moreno sued the IME physician, alleging (1) fraud, (2) tortious interference with a contract, (3) defamation and libel, (4) civil conspiracy to deprive Granados-Moreno of no-fault benefits, and (5) intentional infliction of emotional distress. Granados-Moreno sought damages in excess of $25,000. On December 18, 2017, Dr. Facca filed an answer, generally denying Granados-Moreno’s allegations.

The court reversed the summary judgment, finding that the IME physician may be liable.

The court stated:

Tortious interference with a contract requires three elements: “(1) a contract, (2) a breach, and (3) instigation of the breach without justification by the defendant.” Wood v Herndon, 186 Mich App 495, 499; 465 NW2d 5 (1990) (quotations and citation omitted). In order to prove such a claim, the plaintiff must show “the intentional doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another.” Id. (citation omitted).

In granting Dr. Facca’s motion for summary disposition on the tortious interference claim, the trial court relied on our Supreme Court’s holding in Dyer. However, the holding in Dyer is inapplicable to Granados-Moreno’s tortious interference claim because the issue in Dyer was whether an examinee can assert a medical malpractice claim against a physician who performs an IME given that a traditional physician-patient relationship does not exist in such a context. Dyer, 470 Mich at 48-55. At no point did the Dyer Court address whether a party can bring a tortious interference with a contract claim against an individual who conducts an IME, and the Dyer Court did not hold that plaintiffs are barred from bringing claims in relation to a medical professional’s conclusions and opinions following an IME. Because the trial court improperly relied on the holding in Dyer, we conclude that the trial court erred by granting summary disposition in favor of Dr. Facca on Granados-Moreno’s tortious interference with a contract claim.

Additionally, although not outcome determinative, we agree with Granados-Moreno that our Supreme Court’s statement in Dyer that “[t]he IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports,” is dictum. As already stated, at issue in Dyer was whether an examinee can assert a medical malpractice claim against a physician who performs an IME given that a traditional physician-patient relationship does not exist in such a context. Dyer, 470 Mich at 48-55. The Dyer Court ultimately concluded that “an IME physician has a limited physician-patient relationship with the examinee that gives rise to limited duties to exercise professional care.” Id. at 49. In reaching this conclusion, the Dyer Court noted that an IME physician’s relationship with an examinee is “limited” in that “[i]t does not involve the full panoply of the physician’s typical responsibilities to diagnose and treat the examinee for medical conditions.” Id. at 50. Based on this observation, the Dyer Court indicated that “[t]he IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports.” Id. Rather, the limited relationship only “imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.” Id. Given that the Dyer Court’s statement that “[t]he IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports,” id. at 50, was an extraneous statement that was “unnecessary to the decision in the case,” we conclude that it was nonbinding dictum, see Carr v City of Lansing, 259 Mich App 376, 383-384; 674 NW2d 168 (2003).