Recently, several changes have been made to laws that effect your legal rights. At Albaugh Law, we believe it’s important to share these updates with you because we’re on your side.
Collateral Source
Ingenix v. Ham
Case No. 2D09-2211 (Fla. 2d DCA May 5, 2010)
Section 768.76(4), Fla. Stat., limits a collateral source provider’s right of reimbursement from a claimant’s recovery from a tortfeasor. It provides that the collateral source provider’s recovery: shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement or settlement which is for costs and attorney’s fees.
The Second DCA holds that this provision controls over any provision to the contrary in a health insurance policy.
The health insurer was not entitled to reimbursement of the full amount of medical bills it had paid, even though the policy stated that it was. The insurer’s reimbursement had to be reduced by its pro rata share of costs and attorney’s fees.
Compulsory Medical Examination
Prince v. Mallari
2010 WL 1626522 (Fla. 5th DCA April 23, 2010)
Gaskins v. Canty
29 So.3d 432 (Fla. 2d DCA 2010)
In two recent decisions, the Fifth and Second Districts have clarified some of the parameters for compulsory medical examinations. While these examinations commonly arise under Florida Rule of Civil Procedure 1.360, they also occur in other situations, for example, at the behest of an insurance company in a PIP case, or in a worker’s comp case pursuant to 440.25(7), Fla. Stat. The Supreme Court has applied the same analysis to all of these contexts. See U.S. Security Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000) (holding that the person examined has the right to have their own attorney and a video camera or court reporter present). The Court has also recognized that the examining doctor is not “independent” and that the term “compulsory examination” may be more realistic. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 995 n.4 (Fla. 1999) (noting that Rule 1.360 “specifically provides that the witness ‘shall not be identified as being appointed by the court.’”)
In Gaskins, following the Court’s “liberal view” in Cimino, the court stated that the party being examined is generally entitled to have their attorney, videographer or court reporter present unless the other party establishes a case-specific reason why such attendance would disrupt it, and that no other examiner in the area woud conduct an examination with a third party present. The Gaskins court, like the Cimino court, quashed an order prohibiting the plaintiff from having their attorney or videographer at the examination.
In Prince, the court held that the defendant could not have its own videographer at the CME. It pointed out that the examination is “‘adversarial’and the plaintiff is entitled to protection.” The plaintiff is generally unsophisticated and is “placed in the awkward position of being physically examined by someone not of his or her choosing, who has no interest in the plaintiff’s well-being and not for medical treatment.”
The examining physician is an expert witness for the opposing party. The plaintiff must be protected from improper questioning about liability issues by the defendant’s doctor, and the plaintiff’s privacy must be protected. “The defendant has no such right and needs no such protection.”
The defendant’s attorney is not allowed to attend the examination, see Chavez v. J&L Drywall, 858 So.2d 1266 Fla. 1st DCA 2003), and, the court held in Prince, is not permitted to attend by proxy through a videographer. “If the examination is recorded by her own attorney, she has control of it. To allow a stranger into the examining room to record the examination on behalf of one’s opponent, to be viewed and used as the opponent sees fit, is completely outside the operation of the rule.”
Finally, the court in Prince held that the video is entitled to work product protection unless the plaintiff decides to use it at trial.
