Bartell v. McCarrick, 4-86-1454
| Decision Date | 24 December 1986 |
| Docket Number | No. 4-86-1454,4-86-1454 |
| Citation | 12 Fla. L. Weekly 79,498 So.2d 1378 |
| Parties | 12 Fla. L. Weekly 79 Karen Dawn BARTELL and Michael Bartell, her husband, Petitioners, v. Norman S. McCARRICK and Hermina Ray McCarrick, Respondents. |
| Court | Florida District Court of Appeals |
Robert C. Rogers, Jr., of Lawrence J. Bohannon, P.A., Fort Lauderdale, for petitioners.
James T. Sparkman of Hill, Neale and Riley, Fort Lauderdale, for respondents.
Petitioners, Karen Dawn Bartell and Michael Bartell, are plaintiffs in a suit against respondents, as defendants, arising out of an automobile accident in which Karen sustained personal injuries. Upon motion of respondents, the trial court ordered Karen to submit to a compulsory physical examination by Dr. Robert Rieman, upon reasonable notice. When Karen appeared for the scheduled examination, together with a representative from her attorney's office, Dr. Rieman canceled the examination. Respondents moved for another order for compulsory examination, which was granted, but it precluded Karen from being accompanied by a representative from her attorney's office. Karen seeks certiorari review of said order.
We grant the petition for writ of certiorari and quash the decision of the circuit court and remand the cause for further consideration consistent with this opinion. We have exercised our discretion to grant the petition for certiorari, as we did in Gibson v. Gibson, 456 So.2d 1320 (Fla. 4th DCA 1984), because we perceive that it may be impossible for petitioners to sufficiently demonstrate prejudice to rectify any error on plenary appeal.
Our review of the cases, state and federal, indicates the general rule is that allowing the attendance of a third party at a court ordered medical examination is a matter within the sound judicial discretion of the trial judge. There are a variety of situations that do not lend themselves to a hard and fast rule, such as language barriers, the inability to engage any medical examiner who will perform the examination in the presence of a third person, the particular psychological or physical needs of the patient, or the customs and practices of the bar and medical profession in the area. Trial judges are in the best position to make those decisions on a case by case basis. It should be kept in mind, however, that, absent any valid reason to prohibit the presence of a patient's counsel or other representative, their presence should be allowed. The burden of proof rests with the party opposing third party attendance to show why the court should deny the examinee's right to have counsel, a physician or other representative present. As this court said in Gibson v. Gibson, 456 So.2d 1320, 1321 (Fla. 4th DCA 1984), a case in which we held that the presence of a court reporter should have been allowed at a psychiatric examination: "It is important to note also, that it is the privacy of the petitioner that is involved, not that of the examiner, and if the petitioner wants to be certain that this compelled, although admittedly reasonable, intrusion into her privacy be accurately preserved, then she should be so entitled." The decision in that case was made easier by the fact that the trial court had already provided for counsel for both parties to attend the examination; thus, the court reporter's attendance did not seem untoward. But, going a step further, we hold that the entire matter is governed by the trial court's informed judicial discretion.
Two cases from other jurisdictions typify what we consider to be the general rule. For example, in Sharff v. Superior Court of the City and County of San Francisco, 44 Cal.2d 508, 510, 282 P.2d...
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...Florida follows a liberal view when determining whether attorneys may attend examinations. 4 See 754 So. 2d 701; Bartel v. McCarrick, 498 So. 2d 1378 (Fla. 4th DCA 1986). As a result, the First District concluded the burden should fall on the insurer to exclude an observer. See Broyles v. R......
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What to Do Before and After the Defense Medical Exam
...Florida follows a liberal view when determining whether attorneys may attend examinations. 4 See 754 So. 2d 701; Bartel v. McCarrick , 498 So. 2d 1378 (Fla. 4th DCA 1986). As a result, the First District concluded the burden should fall on the insurer to exclude an observer . See Broyles v.......