CME of Defendants in Florida Personal Injury Cases

CME of Defendants in Florida Personal Injury Cases

Plaintiffs frequently face compulsory medical examinations (“CMEs”) in personal injury cases. Although it is less common for defendants to be required to undergo CMEs, defendants may be subject to them pursuant to the Florida Rules of Civil Procedure. Rule 1.360 provides that a party may request that another party submit to an examination “when the condition that is the subject of the requested examination is in controversy.” The party requesting the examination must have good cause for the examination and has the burden of showing that good cause at any hearing.

The Fourth District recently considered the rule as it relates to a defendant in an automobile accident case in Gray v. Richbell. Gray v. Richbell arose from an automobile accident in which the plaintiff’s daughter was killed. While the daughter was passing a tractor-trailer, she was rear-ended by another vehicle and veered into oncoming traffic, colliding with the defendant’s vehicle. According to the plaintiff’s allegations, the defendant negligently failed to avoid the collision. They argued that his age and physical condition contributed to the accident. Although the defendant objected and sought a protective order, the plaintiff’s obtained his medical records and deposed his doctors.

The plaintiffs then requested a neurological CME. The defendant again objected, arguing that his medical condition was not in controversy and the plaintiffs did not have good cause. The plaintiff’s expert offered an opinion that the defendant was suffering dementia, although none of his doctors had diagnosed him. Shortly before trial, the court overruled the defendant’s objection and ordered him to undergo the CME. The defendant then petitioned the Fourth District for certiorari.

The Fourth District noted that the defendant’s conduct, not his health, was at issue. The defendant’s physical health, the court said, was immaterial, whether the defendant was negligent or not. The plaintiffs failed to show that the defendant’s medical condition was “in controversy” in the case. Furthermore, the plaintiffs did not meet their burden of showing good cause for the CME. Their accident-reconstruction expert had been able to give his opinion without examining the defendant’s medical records, suggesting that a medical examination was not necessary. The district court therefore granted the defendant’s petition to prevent the CME.

Personal injury plaintiffs are so often subjected to CMEs because their medical condition is placed in controversy by their claim of damages for injuries resulting from the accident. As this case shows, the defendant’s health, however, is not automatically placed in controversy in most cases. The defendant may place his or her health in controversy, for example, by raising a “sudden medical emergency” defense, but it can be difficult for a plaintiff to obtain a CME by alleging that the defendant’s health was a factor in the accident.

How We Can Help

If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed civil law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at www.FerrisLawFirm.com.