On July 24, 2012, a Palm Beach County Florida Circuit Court held an evidentiary hearing on plaintiff’s objections to defendant’s request for a neuropsychological compulsory medical examination in the case of Voluck v. State Farm Mutual Automobile Insurance Company, Case Number 502011 CA003642XXXXMB AI, State Farm requested a neuropsychological examination to be conducted by Dr. David Bush. State Farm filed an affidavit from Dr. Bush who requested that counsel for the plaintiff agree to the “exclusion of confidential test materials/stimuli for the recorded video image.” Plaintiff was unwilling to agree to Dr. Bush’s request and objected. At the hearing, the Court heard testimony of Dr. Bush in support of his requested parameters to the neuropsychological CME as well as testimony of Dr. Salaman, plaintiff’s treating neuropsychologist.
Dr. Bush testified that he was concerned about the integrity of the neuropsychological test and that it was his “practice” to not allow the confidential test materials/stimuli to be recorded and shown to anyone, including any other neuropsychologist. Dr. Bush was even unwilling to such recording if the Court would require that such videotapes be turned over directly to plaintiff’s neuropsychologist, not shown to any other individual, and immediately returned and/or destroyed at the conclusion of the case.
Plaintiff called Dr. Salaman. Dr. Salaman testified that it would be important for him to see the test materials and everything going on in the room during Dr. Bush’s CME. Dr. Salaman stated that the review of the “interaction of the examiner and the examinee are crucial,” that many of the tests were “non-verbal” including tests that would require the plaintiff to “draw a complex figure” and certain “steps and procedures.” He concluded that by stating that he had never of any distinction that would keep confidential any test materials/stimuli from another licensed neuropsychologist.
In further support of its objections, plaintiff provided the Court with various Orders of other Florida Circuit Courts, wherein Courts allowed the “exam to be videotaped in its entirety” and held that “there maybe audio and video recording of both the interview and testing portions of the examination.”
The trial court rejected the parameters requested by State Farm instead requiring the parties to enter into an appropriate confidentiality agreement relating to the test protocol/stimuli. The entire CME could be videotaped, however, that portion of the videotape that shows the test protocol/stimuli may only be reviewed by plaintiff’s neuropsychologist. At the conclusion of the case, the Court ordered the videotape to be returned to Dr. Bush.