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During a lawsuit an injured victim may be required to attend a compulsory examination by a physician chosen by the defense. Although these examinations are sometimes called Independent Medical Examinations (IME’s) there is nothing remotely independent about them.

It is common for the examining doctor to be carefully selected by the defense because he has been a reliable fellow in past cases, almost always providing opinions adverse to the interests of the plaintiff. He is paid a bundle of money for the examination, his report and any required court testimony. He likes having the repeat business of the defense attorney or the insurance company involved. One sure way to cut off this income stream is to say too many nice things about injured people sent for these compulsory examinations.

In order to provide as much fairness and transparency as possible the Florida Rule of Civil Procedure allow the plaintiff’s attorney to attend any compulsory examination. It is truly amazing how beneficial this rule has been even though it is rarely used by trial lawyers representing the wrongfully injured. Just the realization that a fast and loose examination will cause the particular attorney or the entire plaintiff’s bar to henceforth attend examinations of all clients tends to keep each doctor from being too casual in approaching examinations and reports.

This week a Florida Appellate Court has ruled that the Rule permitting the attendance of counsel at examinations extends to psychological and psychiatric examinations as well as physical ones. This may boost the sales of couches throughout the state.

JAMES BYRD, Petitioner, v. SOUTHERN PRESTRESSED CONCRETE, INC., Respondent. 1st District. Case No. 1D05-5370. Opinion filed May 2, 2006. 31 Fla. L. Weekly D1215a

Byrd was injured in a multi-vehicle collision that also resulted in two fatalities. He sued Southern Prestressed, alleging that he sustained physical and psychological injuries as a result of the negligence of an employee of Southern Prestressed who was driving one of Southern Prestressed’s tractor-trailers at the time of the incident.

Southern Prestressed requested that Byrd submit to a psychological examination pursuant to Florida Rule of Civil Procedure 1.360, to be conducted by neuropsychologist Dr. Harold H. Smith, Jr. After the examination had been scheduled, Byrd’s attorney notified Southern Prestressed’s attorney that he intended to attend and monitor the examination, but would remain out of his client’s sight. Southern Prestressed responded by filing a motion seeking a protective order that would prohibit either monitoring by any third-party observer or electronic recording. The motion was accompanied by an affidavit from Dr. Smith and other materials intended to support the proposition that the presence of either a third-party observer or an electronic recording device would distort Smith’s evaluation.

After a hearing at which the attorneys argued their respective positions but no evidence was presented, the trial court entered an order prohibiting any third-party observer from attending, but permitting an “unobtrusive and non-distracting” use of “digital audio electronic” equipment to record the examination. By his petition in this court, Byrd asks us to quash that portion of the order prohibiting the attendance of his attorney.

…we conclude that it is an established principle of Florida law that parties are entitled to have an attorney present at examinations conducted pursuant to Florida Rule of Civil Procedure 1.360, regardless of whether the examination is a physical, psychiatric or psychological one, unless the party seeking to prevent the attorney’s presence establishes (1) a case-specific reason why the attorney’s presence would disrupt the examination and (2) that no other qualified individual in the area would be willing to conduct the examination with the attorney present.

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