South Florida Personal Injury Lawyers Blog
In a Florida personal injury lawsuit, both sides conduct investigations in a phase called “pre-trial discovery.” Discovery simplifies the issues, eliminates surprise and encourages fair settlements. Among the tools for discovery are interrogatories, requests for admission, depositions, subpoenas of medical records and independent medical examinations.
A defendant is usually entitled to have a doctor of his or her choice examine a plaintiff where a plaintiff is claiming a physical or emotional condition. That doctor will have access to medical records in addition to the medical examination in order to render an expert opinion at deposition and at trial. Usually where the parties disagree about a trial court’s discovery ruling, the issue can be taken up on appeal. However, sometimes a plaintiff or defendant may petition the appellate court to review the trial court’s decision before the case is over.
In a recent case, the defendant vehicle hit a minor in Florida, fracturing his ankle. The minor had a surgery. His mother subsequently filed a suit against the man for negligence. The defendant requested a pediatric orthopedic examination. A first independent medical examination (IME) was conducted. The minor had a second ankle surgery.
The woman took a video deposition of her own expert, a doctor. He testified that the minor did not have a permanent injury after the first surgery, but he didn’t know whether he had a permanent injury after the second surgery. He testified that he would know better how the minor was doing if he saw him after the second surgery.
The defendant then filed a motion for another IME. The minor’s mother refused, arguing that she had offered to let the defendant examine the minor just after the surgery and the defendant had refused. Now the defendant just wanted to examine the minor because her expert doctor had not performed well at deposition.
The trial court ruled that since the defendant was on notice as to the second surgery, she should have conducted a second IME before the doctor’s deposition. The judge denied the motion. The defendant petitioned the appellate court.
The appellate court, referring to an older case, explained that one party can conduct physical examinations of another when a condition to be examined is the subject of the lawsuit and where the party has good cause of an examination. In the older case, a second operation caused a substantial change in physical condition.
The appellate court explained that the trial court judge committed an error in denying the request for a second medical examination because the minor’s condition was in controversy. The second operation could have caused a substantial change in condition, which would give the defendant good cause for the request.
The court also explained that the defendant’s good cause for an initial IME is usually obvious, requiring no inquiry. When a defendant requests a subsequent IME, there is a stronger showing of necessity required. In the earlier case, the plaintiff’s physical condition changed after the first IME. The court explained that here the minor also underwent a second operation, leading to a substantial change and providing good cause to request the second IME.
The appellate court also explained that the trial court’s denial of a second exam could cause material harm that would last the rest of the case. If you’ve been hurt as a result of somebody else’s negligence, call the experienced personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
More Blogs
Birth Injuries and Medical Negligence in Florida, August 8, 2013
When Can a Plaintiff Ask for a New Trial in Florida, July 26, 2013
Proving Wage Loss in Florida Personal Injury Cases, July 12, 2013