SECOND DCA AGAIN REJECTS LIMITED DISCOVERY OF PRIOR COMPULSORY EXAMINATIONS TO IMPEACH IME PHYSICIANS

The Second District Court of Appeal held in USAA Casualty Insurance Company v. Callery, 36 Fla. Law Weekly D1230a (Fla.2nd DCA June 10, 2011) that a trial court’s order limiting the production of the last 20 compulsory examination reports of an IME doctor with the patient-identifying information redacted was error. The trial court’s order directed that only the physician’s conclusion/impressions, signature, the date of the report, and the name and address of the receiving attorney were to be be provided. Mr. Callery hoped to impeach the IME physician by showing that his reports routinely and uniformly supported insurers. The Second DCA refused the trial court’s order on the grounds that section 456.057 (7) (a) Florida Statutes prevents a health care practitioner from discussing a patient’s medical records without the patient’s written authorization. According to the Second DCA, the trial court did not provide “alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.”Our firm has a pending petition to the Second DCA where the trial court ruled that an IME physician had been evasive in his deposition testimony regarding his opinions in prior compulsory medical examinations for insurers. In the case which our firm is defending, the trial court ordered that the IME physician was to bring with him to a second deposition his past compulsory medical examination reports for the past 3 years, and that he could be deposed as to the date of each exam, the charge for each exam, who hired him, what his opinions were of the existence of permanent injuries, and what his opinions were of the need for future medical care.As in Callery, the trial court’s order did not require the permission of the persons whom were examined in order to disclose their medical conditions. Unlike Callery, the court in our case did not order the production of the records themselves –only that the IME physician bring the reports with him in order to answer questions concerning the injuries and his opinions of their permanency and need for future medical care. We believe that the Second DCA is currently debating the issue of how far a trial judge can go in allowing an injured party to question an IME doctor regarding his opinions, especially of permanency and the needs for future medical care, without notice to the other claimants in those cases, in order to prove that the IME physician retained by an insurer routinely writes compulsory medical examination reports that are favorable to insurers. This type of discovery is not unique, but there appears to be a growing and coordinated effort by plaintiffs’ counsel to compile a bank of information on IME physicians. The challenge for the defense is to answer charges of bias and prejudice in what may amount to a “trial within a trial” to show that IME physicians review medical histories, the facts of the accident and the injuries of each person for the basic proposition that not all medical conditions, histories and injuries are the same for every person. Otherwise, a jury is left with the false impression that all compulsory medical examinations are manipulated by doctors for insurance companies.You will have our analysis of the Second DCA’s opinion, which we believe may lay down a “black letter” rule to be applied by all Florida courts and its implications, as soon as the court reaches a decision on our petition which we filed in November 2010.