Personal injury lawsuits against insurance companies are often a battle of doctors. While American physicians all receive similar training, their opinions commonly differ as to the cause and extent of a particular person’s injury. Many insurance companies are sued so often that they regularly call on the same doctor or doctors to serve as expert witnesses. It should come as no surprise then, that plaintiffs suing insurance companies want to know about the doctors the company plans to call at trial (does the doctor always render opinions beneficial to the insurance company?). A recent ruling makes that a little more difficult.

In USAA Casualty Insurance Company v. Callery, Florida’s Second District Court of Appeals ruled that a trial court could not compel the defendant insurance company to disclose the results of the last 20 medical examinations by a physician called by the insurance company to testify in the plaintiff’s suit for uninsured motorist benefits.

The plaintiff, Christopher Callery, was injured in an auto accident and sued USAA seeking uninsured motorist benefits. At trial, USAA intended to call a physician to testify as to whether Mr. Callery suffered permanent injury as a result of the accident. Mr. Callery requested that the defendant produce records of the doctor’s previous 20 medical examinations. As the Second Circuit explains in its opinion

“Mr. Callery hoped to impeach the physician by showing that his reports routinely and uniformly supported insurers. USAA objected to the request; Mr. Callery moved to compel discovery. The trial court ordered production with all patient-identifying information redacted. More specifically, the trial court 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.”

Section 456.057(7)(a)(3), Florida Statutes (2010) requires that a health care practitioner obtain a patient’s written authorization before discussing the person’s medical records with a third party. The law provides an exception, however, “[i]n any civil or criminal action . . . upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.” § 456.057(7)(a)(3).

Relying on its decision in Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA 2008), the court held that the reports sought to be compelled did not fall within the exception because they were sought only for the purpose of impeaching a non-party physician. The court distinguished the matter from that of Amente v. Newman, 653 So. 2d 1030 (Fla. 1995) – a medical malpractice case in which the state supreme court held that a defendant physician’s medical records for all similar patients for a two-year period were discoverable, without notice to the patients so long as the records were redacted to protect patient identity – because the doctor whose records were sought in that case was an actual party to the litigation.

Despite the ruling, the court left open a scenario under which a physician’s extraneous medical reports may be compelled without running afoul of Florida law. Quoting its own opinion in Graham, the court noted that its ruling in that case “at most ‘allows a court to override [the statutory ban on medical record discussion by a physician] by providing adequate 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.’” The requisite circumstances, however, remain unclear.

The law firm of Anidjar & Levine, P.A. is pleased to serve clients throughout South Florida, including Hollywood, Ft. Lauderdale and Boca Raton, in a variety personal injury law and other legal matters. If you need legal assistance with a claim the South Florida personal injury attorneys at Anidjar & Levine, P.A. are here to help. Our experienced attorneys are prepared to aggressively defend your rights and help get you the compensation you deserve.

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