Wednesday, September 12, 2007
In an action brought against a hospital and several doctors, the plaintiff alleged negligent failure to treat a stroke. The defendants obtained a court order for a neuropsychological evaluation. Plaintiff insisted on counsel's presence at the exam and authority to record the exam on videotape. After a hearing, the trial court refused both requests.
On appeal, the Florida Third District Court of Appeal quashed the order of the trial court. Counsel had "previously disrupted a neuropsychological evaluation of [this client]" by continually objecting to the doctor's questions and instructing the client not to answer. However, Florida law requires both a case-specific basis to exclude counsel (clearly present here) and a finding that no other qualified doctor in the area would perform the exam under such conditions. The defendants failed to meet the second prong because their doctor had testified that others doctors would allow the presence of counsel "solely for financial reasons." (Mike Frisch)