The Hawai`i Supreme Court recently affirmed the Intermediate Court of Appeal, deciding that a medical record review was not independent medical examination.  See Gillian v. Government Employees Ins. Co., 2008 Haw. LEXIS 254 (Haw. Oct. 29, 2008).  We reported on the ICA's decision here. 

    Gillian was injured in an auto accident while a passenger in a car insured by GEICO.  Gillian received personal injury protection benefits.  GEICO questioned benefits which Gillian received several months after the accident, and hired its own doctor to review Gillian's medical records.  Upon review of the records, GEICO's doctor determined Gillian was not entitled to coverage for all of the medical services provided.

    Gillian sued, contending GEICO had hired an independent medical examiner, Dr. Hector, without first seeking Gillian's consent in violation of Haw. Rev. Stat. 431:10C-308.5.  The statute permits an insurer to use an "independent medical examination" to review a claimant's treatment.  Haw. Rev. Stat. 431:10C-308.5 (b). The independent medical examiner must be selected by mutual agreement of the insurer and insured.  Id.  GEICO did not seek Gillan's consent before hiring Dr. Hector, however.  GEICO contended mutual consent for a medical record review was unnecessary because it did not constitute an "independent medical examination."  The trial court found this procedure violated Haw. Rev. Stat. 431:10C-308.5, but the Intermediate Court of Appeals reversed.

    In its analysis, the Supreme Court found the term "independent medical examination" in Haw. Rev. Stat. 431:10C-308.5 (b) ambiguous. Therefore, the Court deferred to the Insurance Commissioner's interpretation.  The Commissioner had previously determined a record review without a physical examination did not qualify as "an independent medical examination" within the meaning of Haw. Rev. Stat. 431:10C-308.5 (b).   Therefore, the Supreme Court affirmed the Intermediate Court of Appeals, holding that an actual examination was an essential aspect of an "independent medical examination" under Haw. Rev. Stat. 431:10C-308.5 (b).