Tuesday, August 4, 2009

Third DCA Grants Petition for Cert on Second Tier Review Relating to the Production of Medical Reports

In United Automobile Insurance Company v. Metro Injury & Rehab Center (3D08-2591), "On second-tier certiorari review, see Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), we grant the petition, issue the writ, and quash the decision of the circuit court on grounds that the circuit court departed from clearly established law."

United sought a certiorari relief "pursuant to Article V, section 4 (b) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030 (b)(2)(B), to quash a decision of the Circuit Court Appellate Division holding that a medical report, produced in accordance with section 627.736(7)(a), Florida Statutes (2005), as a precondition to withdrawal of PIP benefits, must be based on a physical examination performed by a physician, other than the treating physician, who conducts an independent medical examination."

The court held:

We follow our prior holding in Bermudez, and hold that, in order to constitute a “valid report” under section 627.736(7)(a), the physician who issues the report must be a physician who examines the insured or, excluding the treating physician, a physician who reviews the examination and treatment records of the insured. The reporting physician does not have to have personally conducted a physical examination of the insured. We would like to stress, in the hope of avoiding any future confusion, that, although, in Bermudez, an IME had been performed, Bermudez does not stand for the proposition that an IME is required in order for a report to be a “valid report.”


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