DAPHNE MCCORKLE AND RICHARD MCCORKLE, HER HUSBAND, PETITIONERS,
v.
MARION M. FAST, RESPONDENT
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The McCorkles sought certiorari review of a circuit court order prohibiting their attorney from attending an independent medical examination of the plaintiff. The court granted the petition, holding that absent a valid reason, a patient's counsel should be allowed to attend compulsory physical examinations.
Absent any valid reason to exclude the patient's counsel or other representative, their presence should be allowed at compulsory physical examinations. The trial court's order prohibiting the McCorkles' attorney was unsupported by the record and must be reversed.
[1] A trial court may establish protective rules governing compulsory physical examinations, including the presence of third parties.
[2] Absent a valid reason to exclude a patient's counsel or other representative from an independent medical examination, their presence should be allowed.
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Join FLexlaw to unlock all legal intelligence“absent any valid reason to exclude the patient's counsel or other representative, their presence should be allowed”
Establishes the general rule allowing attorney presence at compulsory medical examinations
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Join FLexlaw to unlock all legal intelligenceDaphne and Richard McCorkle were plaintiffs in an auto negligence action. Daphne sought damages for physical injury and Richard sued for loss of conso…
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HALL, Judge.
Daphne and Richard McCorkle seek certiorari review of a circuit court order prohibiting the presence of their attorney at an independent medical examination. We grant the petition.
The McCorkles are plaintiffs in the auto negligence action below. Ms McCorkle seeks damages for physical injury, while her husband is suing for loss of consortium. Respondent, pursuant to Florida Rule of Civil Procedure 1.360(a)(1), scheduled an orthopedic examination. The McCorkles raised a number of objections to the examination, none of which are relevant to the instant petition. They also served notice of their intent to have an “attorney or other representative” present. The designated doctor apparently refused to perform the examination under these conditions, and the trial court entered its order compelling Ms McCorkle to submit to the examination “without third parties present.”
The circuit court is not without authority to establish protective rules governing compulsory physical examinations. See Fla.R.Civ.P. 1.360(a)(3). When an objection is raised to the presence of third parties at such examinations, the court may take into consideration such matters as the unique qualifications of the chosen examiner or a lack of available physicians willing to perform the testing under such conditions. Bartell v. McCarrick, 498 So. 2d 1378 (Fla. 4th DCA 1986). However, absent any valid reason to exclude the patient’s counsel or other representative, their presence should be allowed. Stakley v. Allstate Insurance Co., 547 So. 2d 275 (Fla. 2d DCA 1989); Bartell.
The record in the present case does not support the trial court’s decision to prohibit the McCorkles’ attorney from attending the examination. The doctor’s objections, standing alone, are insufficient. He is not shown to be uniquely qualified to perform the examination or otherwise essential to the preparation of the respondent’s case. While respondent’s counsel stated that he was unable to locate another examiner willing to accept attendance by third parties, the McCorkles disputed this assertion and contended that substitutes are available in the same locality. The trial court made no finding regarding the existence of an alternative doctor. The McCorkles’ notice does not specify what “other representatives” they might bring along, apart from their attorney. We proceed under the assumption that McCorkles’ counsel, or someone operating under his direction, will attend the medical examination. While the policy outlined in Stakley and related cases is not limited to attorneys, the trial court retains the authority to bar third-party attendees upon a showing that their presence would be disruptive, superfluous, or otherwise inappropriate.
The petition for writ of certiorari is granted, and this case is remanded to the circuit court for further proceedings consistent with this opinion.
RYDER, A.C.J., and ALTENBERND, J., concur.
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Broyles v. Reilly, 695 So. 2d 832 (Fla. 2d DCA 1997)…e of a court reporter, as a passive observer.” 617 So. 2d at 853. This court has also held that, absent a valid reason, the trial court may not prohibit the plaintiff’s counsel from being present during the compulsory medical exam. McCorkle v. Fast, 599 So. 2d 277 (Fla. 2d DCA 1992). Under Wilkins, a doctor must provide case-specific justification to support a claim in an affidavit that the presence of a court reporter (and by extension, the plaintiffs attorney) at the examination will be disruptive. 617 So.…
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Wilkins v. Palumbo, 617 So. 2d 850 (Fla. 2d DCA 1993)…In the past, we have suggested that a trial court has discretion to prohibit a court reporter from attending an IME if a uniquely qualified physician explained that the examination could not be performed under those conditions. See McCorkle v. Fast, 599 So. 2d 277 (Fla. 2d DCA 1992). We did not intend that observation to be an invitation to physicians to avoid the general rule concerning court reporters simply by announcing a collective preference against court reporters. Thus, any order prohibiting the atten…
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Freeman v. Latherow, 722 So. 2d 885 (Fla. 2d DCA 1998)…e is no reason that a videographer should be treated differently than a court reporter. Broyles and its predecessors addressed compulsory medical examinations of physical injuries rather than psychiatric examinations. See Wilkins; McCorkle v. Fast, 599 So. 2d 277 (Fla. 2d DCA 1992); see also Brown v. State Farm Mutual Automobile Ins. Co., 705 So. 2d 117 (Fla. 2d DCA 1998). However, this court in a footnote in Wilkins, citing to Medrano v. BEC Construction Corp., 588 So. 2d 1056 (Fla. 3d DCA 1991), noted that…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bartell v. McCARRICK, 498 So. 2d 1378 (Fla. 4th DCA 1986)
- Stakley v. Allstate Ins. Co., 547 So. 2d 275 (Fla. 2d DCA 1989)