ANA BROWN, PETITIONER,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, RESPONDENT
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Ana Brown sought a writ of certiorari to quash a trial court order prohibiting her counsel from attending an Independent Medical Examination (IME) ordered by State Farm. The court granted the petition and quashed the order, holding that an examinee's counsel has a right to attend an IME absent valid case-specific justification from the examining physician.
The court held that an examinee's counsel has the right to attend an IME absent valid reasons to exclude counsel. The burden lies with the party opposing counsel's presence to provide case-specific justification through the examining physician's affidavit demonstrating that counsel's presence would be disruptive.
[1] A trial court may prohibit the presence of third parties at an independent medical examination upon a showing that their presence would be disruptive, superfluous, or oth…
[2] The mere objection of a doctor to the presence of a patient's attorney at an independent medical examination is insufficient, without more, to justify exclusion.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“absent a valid reason to exclude counsel, plaintiff's counsel is entitled to be present at an IME”
Establishes the baseline right of counsel to attend IMEs from McCorkle v. Fast
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Join FLexlaw to unlock all legal intelligenceAna Brown filed an uninsured motorist claim against State Farm following an alleged automobile accident. State Farm scheduled an IME with Dr. Nelson C…
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PER CURIAM.
Ana Brown petitions this court to issue a writ of certiorari quashing the order of the circuit court prohibiting her counsel from attending the Independent Medical Examination (IME) which was scheduled for her with Doctor Nelson Castellano by respondent, State Farm. Because the trial court’s order conflicts with our decision in Broyles v. Reilly, 695 So. 2d 832 (Fla. 2d DCA 1997), we issue the writ, quash the order of the circuit court, and remand for entry of an order permitting the presence of Ms. Brown’s counsel at the IME.
Ms. Brown was allegedly injured in an automobile accident and filed an uninsured motorist claim against State Farm. State Farm scheduled an IME for Ms. Brown with Dr. Castellano; however, Dr. Castellano would not allow Ms. Brown’s counsel to be present during the examination, and counsel refused to let the examination go forward. Both parties filed motions for sanctions. At the hearing on the motions, counsel for State Farm alleged that Ms. Brown’s counsel had assisted her in filling out a questionnaire on her prior history and that she was concerned, based on this, that counsel might “interfere in the actual IME itself.” Dr. Castellano did not testify at the hearing, nor did State Farm introduce an affidavit from Dr. Castellano indicating that the presence of counsel at the IME would be disruptive.
In McCorkle v. Fast, 599 So. 2d 277 (Fla. 2d DCA 1992), we held that, absent a valid reason to exclude counsel, plaintiff’s counsel is entitled to be present at an IME. The burden of proof to show why the examinee is not entitled to the presence of counsel at an IME lies with the party opposing counsel’s presence. See Broyles, 695 So. 2d at 833. A doctor must provide case-specific justification by way of affidavit to show that presence of counsel will be disruptive. See Broyles, 695 So. 2d at 834. Once this test has been satisfied, the party objecting to counsel’s presence must prove, at an evidentiary hearing, that no other qualified physician can be located in the area who would be willing to perform the examination with counsel present. Id. In this case, as noted, State Farm presented no testimony from Dr. Cas-tellano to show that counsel’s presence at the IME would be disruptive. State Farm, therefore, did not meet the first prong of the two-part test outlined in Broyles. As in Broyles, we grant the petition, quash the order of the trial court, and remand to the trial court for entry of an order permitting the presence of Ms. Brown’s counsel at the IME.
Certiorari granted.
BLUE, A.C.J., and FULMER and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lunceford v. Fla. Cent. R.R. Co., Inc., 728 So. 2d 1239 (Fla. 5th DCA 1999)…ented further that no other medical specialist is available who will conduct the examination under those circumstances. See, e.g., Cimino v. U.S. Security Ins. Co., 715 So. 2d 1092 (Fla. 1st DCA 1998); Brown v. State Farm Mutual Automobile Ins. Co., 705 So. 2d 117 (Fla. 2d DCA 1998); Truesdale v. Landau, 573 So. 2d 429 (Fla. 5th DCA 1991) (order prohibiting the presence of a court reporter departs from the essential requirements of law where objecting party makes no showing that the independent examination co…
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Freeman v. Latherow, 722 So. 2d 885 (Fla. 2d DCA 1998)…yles 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 video and audio recordings have been authorized in lieu of a court reporter in psychiatric…
Authorities Cited
- Broyles v. Reilly, 695 So. 2d 832 (Fla. 2d DCA 1997)
- McCORKLE v. Fast, 599 So. 2d 277 (Fla. 2d DCA 1992)