Florida Rule of Civil Procedure (FRCP) 1.360(a)(1)(A) allows the defendant in a personal injury case to have a qualified expert of its own choosing perform a medical examination on the plaintiff with regard to the injury or injuries in controversy. This type of examination has come to be referred to as a “compulsory medical examination,” or “CME.”
The notice of the examination is served by the defendant on the plaintiff’s attorney. The Rule provides that the request “shall specify a reasonable time, place, manner, conditions, and scope of the examination….” The reason for the specificity requirement is to give the plaintiff the opportunity to impose objections to the request if necessary.
The question often arises as to whether or not the CME doctor is allowed to perform invasive testing such as X-rays. The answer is a conditional Yes.
In Schagrin v. Nacht, 683 So. 2d 1173 (Fla. 4th DCA 1996), paragraph 4 of the defendant’s request read as follows:
The scope of the examination is of a urological nature concerning conditions of the Plaintiff relating to the accident which is the subject matter of this lawsuit. The exam shall include any such tests that the doctor feels are necessary for a complete and thorough examination of the Plaintiff.
The plaintiff objected to the request on the basis that it lacked the specificity required by the rule. The circuit court judge disagreed, ordering the plaintiff to submit to the exam. A challenge to the order was filed with the appellate court, from which the 4th DCA reversed the lower court, ruling as follows:
Respondents have failed to disclose in any manner the nature of the examination or the extent of testing that may be performed by the examining physician. Since such testing may include invasive tests which, if improperly performed, may cause serious injury, the trial court’s failure to sustain petitioner’s objection to the request for the medical examination constitutes a departure from the essential requirements of law. See In the Interest of T.M.W., 553 So.2d 260 (Fla. 1st DCA 1989). We recognize that respondents may be entitled to a medical examination that includes invasive testing. However, petitioner is likewise entitled to know the extent of such tests in order to seek the protection of the court in providing for reasonable measures to assure that such testing will not cause injury.
The practice has developed among plaintiffs’ lawyers that unless the request is specific as to what testing will be performed, none will be allowed at the CME. Moreover, specificity alone does not guarantee that the examining doctor will be allowed to perform the testing. Where an objection to the testing is imposed, the defendant will have the burden of establishing good cause for the testing and provide assurances of safety.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.