In Faris v. Southern-Owners Insurance Company, Case Number 5D16-4037, the Florida Fifth DCA threw out sanctions ordered by the trial court against a plaintiff who underwent spinal surgery after being ordered to postpone his surgery so that the insurance company could obtain a compulsory medical examination on him.
No Duty To Inform The Insurance Company Of An Upcoming Surgery Without A Discovery Request
Mr. Faris was injured in a car accident with an uninsured motorist. He has a $250,000 UM policy with Southern-Owners Insurance. Information available about the case indicates that the insurance company denied his claim and that he filed a lawsuit.
The case was litigated for over eight months and Mr. Faris took the courtesy to notify his insurance company that he was having spinal surgery to repair a herniated disc (please note that he was not required to place them on notice but he did so anyway just because he was being nice). The insurance company responded by filing a request for a “compulsory medical examination” (CME-see Fla. R. Civ. P. 1.360) under the Florida Rules of Civil Procedure (it should be further noted that a CME is a discovery request and that there is a remedy for ‘spoliation of evidence’ if evidence is not preserved while there is an outstanding discovery request).
Thereafter, the parties could not agree on a date before the surgery and the insurance company then filed a motion seeking an order requiring that the plaintiff postpone his surgery if a CME could not be performed before surgery. Unshockingly, the trial judge granted this request as is often happening in many Florida cases today.
After having that order from the court, the insurance company appears to have engaged in a scheduling battle that caused Mr. Faris to make a tough decision-continue living with extreme pain to satisfy the insurance company or just go ahead and have the surgery dealing with the consequences later. Ultimately, before his surgery, the trial judge ordered Mr. Faris to cancel the surgery.
Defiance Of Court Order Or Civil Disobedience…
The plaintiff chose to have the surgery despite being ordered to cancel it. The insurance company responded afterward by filing a motion for sanctions and seeking that the lawsuit against them be dismissed because the plaintiff had “willfully and contumaciously disregarded the trial court’s orders…”
Needless to say, the trial judge found that Mr. Faris had showed a “blatant disregard” of the court’s order by having surgery after being ordered to cancel. Mr. Faris appealed arguing that dismissal was too harsh of a sanction under the circumstances.
Dismissal Is Reserved As The Most Severe Sanction
Dismissal is supposed to only be ordered “only in extreme circumstances.” It is not supposed to be used for punishment but instead to ensure that the parties comply with the rules of procedure. Generally speaking, if a less severe sanction is available then the court should order a less severe alternative to dismissal (see Kozel v. Ostendorf, 629 So. 2d 818 (Fla. 1993) and a 2017 published discussion in the Florida Bar Journal).
The Fifth DCA reiterated that there was never a requirement for a plaintiff to notify the defendant in a case before having surgery unless there is an active discovery request pending or there has been an order by the court. In this case, while the trial judge had ordered Mr. Faris not to undergo surgery, the Fifth DCA sympathized with him because he was forced to make a tough decision while the insurance company fiddled around with scheduling dates. Further, the Fifth DCA recognized Mr. Faris’s good faith efforts to comply with the trial judge’s order as well as the fact that there was no evidence of discovery misconduct in the case (remember, it was the plaintiff who played “fair” in the first place by giving notice to the insurance company).
The Truth About CME’s In Florida
I have had clients subjected to these discovery requests after the insurance company gets even the slightest whiff that the plaintiff may undergo an operation. These “protective orders” requiring a plaintiff to attend a compulsory examination are often unnecessary and fruitless as no one can see inside the body unless the surgery is performed anyway.
While medical professionals have x-rays, CT’s, and MRI’s, the best evidence of injury (and the need for surgical repair) is often a photograph taken by the surgical team during the procedure to document the medical work performed. There is no way that an “expert” paid by an insurance company would have the benefit of such evidence to challenge whether surgery was actually needed or not before the operation itself.
So why make people suffer? I really do not know except to say that litigation is a zero sum game.
Secondly, films are almost always taken after the surgery for comparison. If a surgery was truly not necessary, then the before and after films should show it (and there should be no benefit from the surgery). This is where the result of the surgery should speak for itself.
This Is Why You Need Help In Your Fight With The Insurance Company
After you have become injured, your life becomes a financial game to an insurance company. You are not a person. Instead, you are a claim number and a liability for them. To get the only justice available under the law (compensation), you must often hire legal counsel and be prepared to for the fight of your life.
Call us for a free discussion of your personal injury case. We are a personal injury law firm located in Lakeland, Florida and are available to answer your questions. Call us today for your free consultation.