Matthew Scarborough

Second DCA Rules in Favor of SHM – “Creative Attempt” at Ruling Overturned

  • By: Scarborough Attorneys at Law
  • Published: March 12, 2012

Scarborough, Hull & Miller prevailed in a decision handed down by the Second District Court of Appeal in Earl R. Crowley v. Home Building Materials, Inc., and Stephen Padar, M.D., which was appealed in a writ of certiorari to prevent the trial court from ordering a physician to attend a deposition with the records of compulsory medical examination reports prepared for other insurers.

The same trial court judge previously ordered an insurer to produce compulsory medical examination reports in USAA Casualty Insurance Co. v. Callery, 66 So. 3d 315 (Fla. 2nd DCA 2011) which we reported on our firm blog while our case was still pending before the same court of appeal.

In Callery, the trial court ordered the production of compulsory medical examination reports for the last twenty “CMEs” performed by the CME physician who examined him in hopes of “impeach[ing] the physician by showing that his reports routinely and uniformly supported insurers.” The trial court ordered production with all patient-identifying information redacted. The trial court also directed that “only the physician’s conclusions/impressions, the physician’s signature, the date of report, and the name and address of the receiving attorney be provided.”

In our case, the same judge ordered that the examining physician to answer questions for the dates of the past CME’s, the name of the entity who hired the physician, the alleged injury, the doctor’s opinion regarding permanency, and the doctor’s opinion regarding the need for future medical care provided that the doctor did not reveal the names of those were examined.

The Second District Court of Appeal reversed holding that the trial court “departed from the essential requirements of law by compelling disclosure of medical examination reports without notice to the patients as required by section 456.057(7)(a)” when there was no showing that the prior notice required by that section was impossible.

The issue in our case differed slightly on its facts from the Callery case. In Callery, the examining physician was ordered to produce the reports themselves with the names of the people who were examined redacted. In our case, the examining physician was ordered to bring reports with him and to answer question about the medical conditions and his opinions without mentioning their names.

The Second District Court of Appeal called the trial judge’s ruling in our case “a creative attempt.” What is disturbing to us is that the trial court’s orders in Callery and our case were only days apart with two different reasons both of which were appealed within days of each other and both of which were reversed. Creativity in approaching the same rule to impeach defense doctors was improper according to the Second District Court of Appeal in our case, and the decision in our case is reported at Earl R. Crowley v. Home Building Materials, Inc., and Stephen Padar, M.D., 66 So. 3d 355 (Fla. 2nd DCA 2011).

If you would like a copy of the Callery and Crowley opinions, please contact Liva Rivera at liva@shmlegal.com

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