Don’t let the term “independent” fool you; the doctor is not impartial and is not your friend. Still, it’s often a necessary element to ensure fairness in civil litigation. Denying a defendant access to a key portion of the evidence – i.e., your medical condition – could be considered a miscarriage of justice.
That said, our Coral Springs injury lawyers know there comes a point when requests for examinations can become excessive. Florida courts have addressed this issue before, and it arose again recently in Goicochea v. Lopez, which came before the Third District Court of Appeals.
This situation was unique for the fact that it involved three separate and unrelated car accidents and three separate and unrelated defendants. However, all three cases shared the same plaintiff, who had been the victim of three crashes – one in July 2007, another in November 2007 and a third in January 2009.
In each of these crashes, she asserts, she sustained injuries. However, she maintains the nature of those injuries at this point are “indivisible and superimposed” on one another, such that she can’t say what percentage of her injuries were caused by which crash.
Meanwhile, each of the defendants filed a motion for an independent medical exam for their case, which for the plaintiff would have meant undergoing at least three separate medical examinations for defense teams. This, she alleged, would be excessive.
She filed a petition with the trial court for a protective order that would have only required her to undergo one independent medical exam, the results of which would be shared by the three defendants. She cited a 2008 case involving Royal Caribbean Cruises as a defendant, in which the Third District Court of Appeals had ruled when a defendant requests more than one independent medical exam, he or she needs to provide strong proof that such an exam is necessary before the court will grant consent.
The trial court granted this motion, but the defense appealed. The argument was the plaintiff, by asserting that she could not ascertain which injuries were attributable to which accident, had effectively pitted the defense teams against one another. To be successful, each would need to argue the plaintiff’s injuries were the result of one of the other two accidents.
However, the trial court was forcing them to share the same expert witness, thereby denying the defendants the benefit of Florida Rule rule 1.360(a)(1)(A), which deals with examination of persons.
Further, the appellate court determined, such a ruling could result in an error that would not be remedied upon appeal. Therefore, the court granted the defense motion to compel the plaintiff to undergo separate independent medical examinations for each case.
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Goicochea v. Lopez, June 11, 2014, Florida’s Third District Court of Appeal
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Drunk Driving Wrongful Death Lawsuit Derailed Over Pre-Trial Notice Issue, May 27, 2014, Coral Springs Injury Lawyer Blog