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News
On Appeal
Attorney can be present at exam, court overrules
September 13, 2007 By: Billy Shields
A young stroke victim should be allowed to have her attorney present
during a neuropsychological examination to determine the extent
of her injuries, a state appeals court ruled Wednesday.
The 3rd District Court of Appeal reversed a decision by Miami-Dade
Circuit Judge Michael A. Genden barring Grisell Bacallao's attorney
from the exam in a malpractice suit against Westchester General
Hospital, doctors and physicians assistants.
The attorney's exclusion "results in material injury that cannot
be corrected on appeal," Judge Angel A. Cortiñas wrote.
Judges Leslie B. Rothenberg and Juan Ramirez Jr. concurred.
The burden of proof falls on the party seeking the private exam,
the panel wrote. But the defendants failed to satisfy a two-prong
test for excluding plaintiff counsel and prohibiting any video or
audio recording of the exam.
A third-party observer can be excluded from a compulsory medical
exam only if a party can demonstrate why it would disrupt the examination
and prove no other qualified physician exists in the area to perform
the exam, the panel wrote.
Bacallao sought treatment at the hospital for neurological symptoms
such as numbness, weakness and confusion from November 1996 to February
1997, according to plaintiff lawyers.
She suffered a stroke Feb. 4, 1997, when she was 21 and sued the
hospital and the other defendants two years later.
The suit alleges the defendants were negligent when they failed
to diagnose her condition in time. It also claims the physicians
should have noted she was on birth-control pills, which increase
the risk in women for strokes.
"The tipoff is if a young woman's having stroke-like symptoms
and she's on birth control pills, that's the risk factor for stroke,"
said Scott P. Schlesinger, a Fort Lauderdale personal injury attorney
representing Bacallao.
"My client has a hole in her head where her brain used to be
from the injuries she sustained from the malpractice," Schlesinger
said.
Helen Ann Hauser, a partner with Dittmar & Hauser who represented
the defendants on appeal, declined to comment on the case. Kenneth
R. Drake, a partner with Demahy Labrador & Drake and lead attorney
for the defense, did not immediately return calls seeking comment
by deadline.
As the suit went forward, the defense requested that Bacallao submit
to the exam by one of its expert witnesses, University of Miami
psychology professor Bonnie Levin.
The trial court record indicated Bacallao's attorney disrupted another
physician's exam.
Levin testified the only way for her to properly examine Bacallao
would be without the presence of another party or taping equipment,
according to the opinion.
Genden held several hearings before ordering the unmonitored exam,
and Bacallao's attorneys appealed. The 3rd DCA's ruling quashes
the trial court order.
Schlesinger said for a defense expert to examine Bacallao alone
would be "like leaving your client in a room with a defense
lawyer. She's adverse to the plaintiff she's examining, and the
courts recognize that adversity. In neuropsychology, it's very difficult
to obtain neutrality."
But the appeals court cautioned the exam must proceed without interference
from Bacallao's representative. Otherwise, the trial court can take
steps to give Levin "a reasonable opportunity" to complete
her exam.
The ruling replaces a previous opinion issued May 30 and definitively
settles an issue the parties had been arguing over for months.
Billy Shields can be reached at bshields@alm.com
or at (305) 347-6649.
Daily Business Review
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Sheldon J. Schlesinger, P.A. represents clients throughout
the state of Florida including the cities of Boca Raton, Boynton
Beach, Carol City, Cooper City, Coral Gables, Coral Springs, Davie,
Deerfield Beach, Delray Beach, Fort Lauderdale, Hialeah, Hollywood,
Jupiter, Lake Worth, Miramar, Miami, Oakland Park, Palm Beach, Palm
Beach Gardens, Palm Springs, Pompano Beach, and Rivera Beach
Broward County • Miami-Dade County • Palm Beach
County
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