View this article online: https://www.claimsjournal.com/news/west/2012/09/18/213780.htm
The Montana Supreme Court has vacated a lower court order requiring a psychological exam for a woman seeking insurance benefits for a back injury and other injuries she suffered after being struck by a hit-and-run driver in Chicago in 2003.
Former Montana resident Caryn Lewis filed a claim with State Farm seeking payment under her uninsured motorist coverage for medical costs, physical and emotional pain and anxiety associated with the injuries she suffered.
A physician who evaluated Lewis in January 2010 suggested her chronic pain may be more of a psychological issue than a physical issue, but said he would defer that to a psychiatric evaluation. State Farm sought such an exam and a District Court judge in Great Falls granted the motion, saying the cause of Lewis’ chronic pain remained at issue.
Lewis’ attorney, Michael Barer of Great Falls, filed a petition for supervisory control with the Supreme Court, asking justices to vacate the lower court’s order.
Barer argued that Lewis was making a claim for the normal “unpleasant mental reaction” that would be reasonably expected to result from severe physical injuries, not for a separate psychological injury, and therefore was not raising an issue about her mental health.
The Supreme Court, in a 4-1 ruling Tuesday, wrote that Lewis’ claim does not seek damages for any mental or psychological disorder and subjecting her to an independent psychological examination would be a violation of her right to privacy.
Justice Michael Wheat wrote the order and justices Mike McGrath, Patricia Cotter and Brian Morris agreed.
Justice James Rice dissented. He argued that physician who conducted the medical exam for State Farm and one of Lewis’ experts felt that part of her pain was being driven by her depression over other issues besides the crash.
“Thus, the issue here is not merely a general claim for emotional damages arising from an accident, but whether Lewis’s claimed physical problems are caused by the accident or by psychological causes,” Rice wrote.
“Without the opportunity to conduct further psychological evaluation, State Farm may well be hamstrung in securing the expert testimony necessary to meet its burden of proving that Lewis’s injuries,” may be in part due to pre-existing mental health issues.
Barer said the order cannot be appealed and the case will either go to trial or to settlement negotiations. Calvin Stacey, the attorney for State Farm, was not in the office Friday and could not be reached for comment.