Academic journal article Journal of Risk and Insurance

Policyholder Subject to Adverse Medical Examination Entitled to Have Attorney Present and to Videotape Examination

Academic journal article Journal of Risk and Insurance

Policyholder Subject to Adverse Medical Examination Entitled to Have Attorney Present and to Videotape Examination

Article excerpt

U.S. Security Insurance Co. v. Jeanni M. Cimino, 2000 Fla. LEXIS 498 (Florida Supreme Court--March 9, 2000).

A frequent event in tort litigation is the adverse medical examination, usually of the claimant whose condition is in controversy. This staple of tort claims also takes place when a policyholder seeks first-party medical benefits under health insurance or the personal injury protection (PIP) benefits of automobile insurance. One such claimant was Jeanni M. Cimino, who was injured in an auto accident and sought PIP benefits from her insurer.

The insurer scheduled a medical examination pursuant to the policy, which included a provision permitting the insurer to select the physician. Cimino responded with a request that her attorney be present to videotape the examination with a small, handheld video camera. On the day of the exam, Cimino and her lawyer arrived at the doctor's office, but at the direction of the insurer, the doctor refused to conduct the examination with the lawyer present or if the exam were videotaped. The exam was rescheduled, with insurer U.S. Security taking the position that only Cimino could attend and that the attendance of others would be considered a breach of the policy upon which U.S. Security would terminate its benefits.

Cimino subsequently filed a complaint seeking coverage, including a determination that the medical examination could be recorded and observed by counsel. The trial court ruled for the insurer, but the intermediate appellate court held that Cimino could be represented by counsel at the examination and that the exam could be recorded by stenographic or other means. The Florida Supreme Court affirmed the intermediate appellate court in a case of first impression for the Court.

Reviewing Cimino's auto policy, the court found that the policy required the insured to submit to mental and physical examinations as often as the insurer might reasonably require but said nothing about recording the exam or the attendance of others. Cimino's policy stated that benefits would be terminated if the insured "unreasonably refuses to submit to an examination." However, the Court found no breach of this provision. Cimino had indeed agreed to be examined. She had even arrived at the doctor's office. The presence of her attorney and any recording device did not negate her attendance or result in a refusal to submit to examination. Consequently there was no breach by Cimino of either the medical examination clause in the policy or the policy's general cooperation clause.

In Florida, as in most states, a party required to undergo medical examination in tort litigation or a workers compensation claim is permitted to be accompanied or to record the exam. The general rationale for permitting this is both fairness and decency (the injured person should be able to have a second when visiting a strange doctor under awkward circumstances) as well as the adversarial nature of the examination, in which the physician, the defendant, or the insurer may attempt to use some element of the examination against the claimant. …

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