DISCOVERY CASE OUTLINE
©Richard E. Best
1998-2006All Rights Reserved
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DISCOVERY
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DISCOVERY REFEREE |
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MEDICAL EXAMINATIONS
RELATED ISSUES
"IN CONTROVERSY"
"GOOD CAUSE" for Medical Exam
PHYSICAL EXAMINATIONS
MENTAL EXAMINATIONS
PERSONS SUBJECT TO EXAM
PERSON CONDUCTING EXAM
PERSONS PRESENT & RECORDING
Attorney or its representative
Stenographic or audio tape recording
Videotaping not permitted
Personal physicianAudio taping permitted
Attorneys and court reporters generally not allowed to be present
ORDER FOR EXAM
PHYSICIAN'S WRITTEN REPORT
DEPOSITION OF EXAMINING PHYSICIAN
NUMBER OF EXAMINATIONS
SANCTIONS
Abex v. Superior Court(1989), 209 Cal.App.3d 755
Barrenda v. Superior Court (1998),65 Cal.App.4th 794
Bittle v. Superior Court (1976) 55 Cal.App.3d 489
Board of Trustees v. Superior Court (1969) 274 Cal.App.2d 377
Browne v. Superior Court (1979) 98 Cal.App.3d 610
Carpenter v. Superior Court (Yamaha Motor
Corp., USA) (2006) , 141 Cal.App.4th 249
Doyle v. Superior Court(1996), 50 Cal.App.4th 1878
Durst v. Superior Court (1963) 222 Cal.App.2d 447
Ebel v. Superior Court (1974) 39 Cal.App.3d 934
Edmiston v. Superior Court (1978) 22 Cal.3d 699.
Edwards v. Superior Court (1976), 16 Cal.3d 905
Golfland Entertainment Centers, Inc. v. Superior Court (Nunez)
(2003),108 Cal.App.4th 739
Gonzi v. Superior Court (1959) 51 Cal.2d 586
Grover v. Superior Court (1958) 161 Cal.App.2d 644
Kennedy v. Superior Court(1998), 64 Cal.App.4th 674
Harabedian v. Superior Court (1961) 195 Cal.App.2d 26
Knoettgen v. Superior Court (19 ), 224 CA3d 11
Long v. Hauser (1975) 52 Cal.App.3d 490
Mendez v. Superior Court(1988), 206 Cal.App.3d 557
Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th
913
Munoz v. Superior Court
(1972) 26 Cal.App.3d 643
Queen of Angels Hospital v.
Superior Court (1976) 57 Cal.App.3d 370
Ramirez v. Macadam(1993),
13 Cal.App.4th 1638
Reuters v. Superior Court
(1979) 93 Cal.App.3d 332
Shapira v. Superior Court(1990),
224 Cal.App.3d 1249
Sharff v. Superior Court (1955) 44 Cal.2d 508
Toyota Motor Sales, U.S.A., Inc. v. Superior Court (Braun)
(2010), 189 Cal.App.4th 1391
Vinson v. Superior Court(1987), 43 Cal.3d 833
Whitfield v. Superior Court (1966) 246 Cal.App.2d 81
STATUTORY OUTLINE C.C.P. §2032
See Discovery
Act outline and text
Who
By party & of party or its agent or person under its control
Performed by person specified in .230(b) & (c)
Prerequisites
Condition must be “in controversy” [ .020(a)]
Good cause [except in PI case where right to one physical exam of Plt.]
Distance limitations: 75 miles unless good cause + comp for travel [.220(a)(2)]
Procedure
Demand one physical exam in PI
Response within 20 days [.230(b)] or waive objections [.240(a)] unless relieved
Motion to compel and sanctions [.240(b) & (c)]
Motion for other exams e.g. mental exam or 2d physical [.310(a)]
Sanctions for failure to appear when required to do so [.410]
Demand
30 days service on all parties
Specify time, place, manner etc. physician and specialty
Motion
Meet & confer; show good cause;
Specify time, place, manner etc. physician and specialty
Serve person to be examined & all parties
Stipulation to avoid mental exam in PI case [.320(b)]
No claim for mental distress over that usually associated with phys.injury claimed
No expert testimony to be presented to support dgs for emotional distress
Order to provide details re exam and examiner
Conduct of exam [.510 - .530]
Persons who may attend physical exam ; audio, stenographer
Termination due to conduct [.510(d) & (e)]
X-rays [.520]
Recording mental exams [.530]
Reports [.610 - .650]
Detailed written report: history, exam, findings, test results, diagnosis, prognosis,
Delivered 30 days after demand or 15 days prior to trial
Motion to compel & sanctions
Demand for report waives privilege & work product re similar reports and testimony [.630]
Right to receive report in return [.640 + Kennedy case infra]
Production of Medical Records
Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913. Case dismissed for refusal to comply with a court order requiring execution of an authorization required by hospitals to release medical records.
Document Production at Deposition
Right to Privacy
Physician patient privilege
Psychotherapist-patient privilege
Expert Disclosure
Work Product
Medical Quality Review Board
Mental or physical condition must be "in controversy" [C.C.P. §2032(a)]
Doyle v. Superior Court(1996),50 Cal.App.4th 1878 [Mental distress ceased prior to demand for exam and the current mental condition was not in controversy; only "garden variety" mental distress alleged in sexual harassment suit ]
Reuters v. Superior Court (1979) 93 Cal.App.3d 332 [the psychiatric condition of a mother of a child suffering emotional distress is not "in controversy" because of the effect her mental condition may have on her child; the issue was not contested on appeal but the court discussed it at some length]
Vinson v. Superior Court(1987), 43 Cal.3d 833[p.847 unlikely simple sex harassment claim will justify a mental exam; continuing distress from sex harassment alleged; not "in controversy" in normal sex harass case]
Vinson v. Superior Court(1987), 43 Cal.3d 833, 840. [Raised by allegations in complaint re "great mental pain . . . and suffering"; issues of pre-existng mental condition and alternative sources of distress]
In re Lifschutz (1970), 2 Cal.3d 415 at p. 436 [typical allegations of mental or emotional distress may have to be limited by plaintiff to "...merely the normal distress experienced as a result of physical assault...."]
Whitfield v. Superior Court (1966) 246 Cal.App.2d 81. [Psychiatric exam when only physical injuries alleged in pleadings, but parties conceded psychiatric injuries were issue.]
Harabedian v. Superior Court (1961) 195 Cal.App.2d 26 (Defendent admitted at deposition to blurred vision and congenital defect in one eye.)
Showing of good cause
Barrenda v. Superior Court (1998), 65 Cal.App.4th 794 [Writ issued to prevent psych exam when no good cause shown. Attorney declaration incompetent on medical issues and nexus of exam subject to issues.]
Shapira v. Superior Court (1990), 224 Cal.App.3d 1249 [tr ct rev'd for denial of mental exam on belief only one mental exam permitted; multiple exams should not be granted routinely but the only limitation is the requirement to show good cause; good cause supported by recommendation of exam by two experts and showing re purpose and function of third exam]
Bittle v. Superior Court (1976) 55 Cal.App.3d 489.[Shown by incorporation of broad allegations of complaint in Notice of Motion]Constitutional Right to Privacy requirement incorporated into good cause
See privacy case outline
Barrenda v. Superior Court (1998), 65 Cal.App.4th 794 [need psych expert declaration to show nexus between type of mental distress at issue and type of discovery sought; atty declaration insufficient; No showing of direct relevance of the discovery to overcome the right to privacy;t]Mendez v. Superior Court(1988), 206 Cal.App.3d 557,566, 568 [Constitutional right to privacy may be incorporated into good cause requirement, citing Vinson v. Superior Court re psych exam ]
Reuters v. Superior Court (1979) 93 Cal.App.3d 332.[ Not violation of right to privacy if within scope of section 2032.]
Not painful, protracted or intrusive exams [C.C.P. §2032(c)(2)]
Abex v. Superior Court(1989), 209 Cal.App.3d 755 [Clear abuse of discretion to deny biopsy of wart by dermatologist.]
Not authorized to test credibility of party
Doyle v. Superior Court(1996), 50 Cal.App.4th 1878
Sexual harassment etc. cases
Vinson v. Superior Court (1987), 43 Cal.3d 833 [no mental exam in normal case]
Barrenda v. Superior Court(1998) [mental exam denied though claim for suffering "severe, permanent and disabling injuries and great mental suffering" and sought damages for past and future psychological treatment; lack of psych expert declaration showing nexus between psych damage claim and discovery sought]
Doyle v. Superior Court(1996), 50 Cal.App.4th 1878 [Writ issued to prevent mental exam in sexual harassment suit alleging severe emotional distress; only "garden variety" emotional damages claimed and complaint amended
See Knoettgen v. Superior Court (19 ), 224 CA3d 11 [writ issued to prevent depo questions re childhood sexual harassment or attacks in sexual harassment case despite psych declaration of importance re alternative sources of emotional distress, extent of damages from alleged acts, and affect on sexual perceptions, attitudes and behavior.]Number only limited by requirement to show good cause
Shapira v. Superior Court (1990), 224 Cal.App.3d 1249 [tr CT rev'd for denial of mental exam on belief only one mental exam permitted; multiple exams should not be granted routinely but the only limitation is the requirement to show good cause; dictum that good cause had been shown when a neurologist and neuropsychologist recommended a psychiatric exam]
Reuters v. Superior Court (1979) 93 Cal.App.3d 332 [psychiatric exam may include a psychological exam under the direction of the psychiatrist and is analogous to an Xray or similar test to gather facts for the psychiatric exam]
PERSONS SUBJECT TO EXAM [C.C.P. § 2032(a)]
Party, Agent of party, Natural Person in custody or control of party
Defendant may be subject of exam
Harabedian v. Superior Court (1961) 195 Cal.App.2d 26 (Defendent admitted at deposition to blurred vision and congenital defect in one eye.)
Reuters v. Superior Court (1979) 93 Cal.App.3d 332 [not a mother of a minor claiming psych injuries]
PERSON CONDUCTING EXAM [C.C.P. §2032 (b) NOTE statutory changes and special statute in family law]Person authorized by statute
Reuters v. Superior Court (1979) 93 Cal.App.3d 332 [includes those under the supervision of a physician authorized; psychological exam and testing in connnection with psychiatric exam by physician]
Licenced physician
Other appropriate licensed health care practitioner re physical exams
Licenced physician or clinical psychologist with doctorate & 5 years experince with emotional & mental diagnosesReuter v. Superior Court (1979), 93 Cal.App.3d 332.[Must be within categories authorized by statute; Prior law; must be licensed physician or surgeon under Medical Practice Act; statute was admended to broaden list of those conducting exam]
Browne v. Superior Court (1979) 98 Cal.App.3d 610 [No exam by vocational rehabilitation expert who is not a licensed physician or is not conducting the exam at the direction and under the supervision of a physician.)Possible rejection of examining physician
Edwards v. Superior Court (1976), 16 Cal.3d 905, 913.("Of course the trial court has broad discretion to determine whether good cause exists for refusing to accept the examining party's choice of a physician.")
PHYSICAL EXAM [C.C.P. § 2032 (g) codified prior case law re attorney & tape recording]
Attorney or its representative [C.C.P. § 2032(g)]
Ebel v. Superior Court (1974) 39 Cal.App.3d 934.[prior law]
Sharff v. Superior Court (1955) 44 Cal.2d 508, 510.(Plaintiff "should" be permitted to have assistance and protection of attorney.)
Munoz v. Superior Court (1972) 26 Cal.App.3d 643, 646.(Plaintiff "is entitled to the presence of her attorney at such examination.")Stenographic or audio tape recording [C.C.P. § 2032(g)]
Gonzi v. Superior Court (1959) 51 Cal.2d 586, 589.(Prior law: "Justice requires that permission be granted at the request of either party.")
Munoz v. Superior Court (1972) 26 Cal.App.3d 643, 645.
Videotaping not permitted [consistent with current statute]
Edmiston v. Superior Court (1978) 22 Cal.3d 699.
Ramirez v. Macadam(1993), 13 Cal.app.4th 1638 [1986 law & prior cases analyzed]
Personal physician [current statute does not authorize presence]
Long v. Hauser (1975) 52 Cal.App.3d 490. [A party does not have an unqualified right to have a personal physician present at a pretrial examination and the court can exercise discretion.]
A party does not have a right to the presence of a court reporter and attorney at a court-ordered exam. under Evidence Code §730.
Durst v. Superior Court (1963) 222 Cal.App.2d 447
PSYCHIATRIC EXAMS [C.C.P. § 2032(g)(2)]
Audio taping expressly permitted by statute
Prior law re disruptive effect of recording statements
Golfland Entertainment Centers, Inc. v. Superior Court (Nunez) (2003),108 Cal.App.4th 739 [Edwards case followed; taping ordered to be done by examining neuropsychologist; lawyer and court reporter excluded]
Edwards v. Superior Court, supra, at p. 912.Durst v. Superior Court, supra, at p. 453.
Control of abusive questioning possible but not encouraged
Toyota Motor Sales, U.S.A., Inc. v. Superior Court (Braun) (2010), 189 Cal.App.4th 1391 No. B226902 Counsel presence at psych exam prohibited absent showing of necessity.A writ issued to set aside the trial court's order permitting an examinee's counsel to be present in an adjoining room at a psychiatric exam in order to monitor the exam due to a lack of any evidence of necessity. Based on language in the Vinson and Golfland Entertainment cases, the court acknowledged that a trial court could permit counsel to be present at a psychiatric examination if necessary to protect the examinee from intrusive or offensive probing or otherwise protect his privacy in exceptional cases.
Golfland Entertainment Centers, Inc. v. Superior Court (Nunez) (2003),108 Cal.App.4th 739 [counsel could not agree on guidelines for conducting a mental exam ; order clarified who could be present and also establised guidelines as to proper questioning by neurophychologist; "Dr. Epperson may {Slip Opn. Page 9} take a history from David Nunez, but Dr. Epperson shall not ask him questions regarding the facts and circumstances of the accident to the extent those matters were already stated by David Nunez in his deposition or in his interview with Dr. Baumbach."]
Attorneys and court reporters generally not allowed to be present [prior law unaffected]
Toyota Motor Sales, U.S.A., Inc. v. Superior Court (Braun) (2010), 189 Cal.App.4th 1391 No. B226902 Counsel presence at psych exam prohibited absent showing of necessity.A writ issued to set aside the trial court's order permitting an examinee's counsel to be present in an adjoining room at a psychiatric exam in order to monitor the exam due to a lack of any evidence of necessity. Based on language in the Vinson and Golfland Entertainment cases, the court acknowledged that a trial court could permit counsel to be present at a psychiatric examination if necessary to protect the examinee from intrusive or offensive probing or otherwise protect his privacy in exceptional cases.Golfland Entertainment Centers, Inc. v. Superior Court (Nunez) (2003),108 Cal.App.4th 739 [trial curt reversed for permitting counsel to be present; Mother of child being examined was permitted by tr ct to be present and that was not contested; "...in most cases, counsel should not be permitted to attend a mental examination, even though trial courts retain the discretion to allow {Slip Opn. Page 11} counsel's presence in exceptional cases."
Vinson v. Superior Court(1987), 43 Cal.3d 833 p.846 [exclusion of atty not abuse of discretion]
Edwards v. Superior Court (1976) 16 Cal.3d 905 [tr CT discretion]
Whitfield v. Superior Court (1966) 246 Cal.App.2d 81, 85.
Board of Trustees v. Superior Court (1969) 274 Cal.App.2d 377, 380.
Durst v. Superior Court (1963) 222 Cal.App.2d 447.
ORDER FOR EXAM
[C.C.P. §2032.320]
Golfland Entertainment Centers, Inc. v. Superior Court (Nunez) (2003),108 Cal.App.4th 739 [counsel could not agree on guidelines for conducting a mental exam ; order clarified who could be present and also establised guidelines as to proper questioning by neurophychologist; the order permitted questions eliciting a narrative response but not repetitive questions about the accident on matters covered in deposition or prior medical exam]
Edwards v. Superior Court (1976), 16 Cal.3d 905, 913.("Of course the trial court has broad discretion to determine whether good cause exists for refusing to accept the examining party's choice of a physician.")
Court order for medical exam is defective if it fails to specify time, place, manner, conditions etc.
Carpenter v. Superior Court (Yamaha Motor Corp., USA) (2006) , 141 Cal.App.4th 249 Orders compelling mental examinations must specify the name of any test. Production of a copy of the test is not prohibited by copyright law. "Carpenter raises two issues: (1) whether the trial court complied with the requirement of section 2032.320 to "specify the . . . diagnostic tests and procedures . . . of the examination" by ordering "standardized written psychological tests" of "emotional and cognitive functioning;" and (2) whether the court abused its discretion in failing to allow him to obtain a copy of the written testing materials and his written answers." {Slip Opn. Page 8} C.C.P. "section 2032.320 requires the trial court to list by name the diagnostic tests and procedures to be employed in the mental examination." "The way to describe these "diagnostic tests and procedures"--fully and in detail--is to list them by name."{Slip Opn. Page 10}
The court held that the existence of a valid copyright on test did not preclude their production in discovery: "Based on the record before it, the trial court erred in concluding that the written test questions could not be provided to Carpenter due to copyright law." The court noted that defendant was not the holder of the copyright. Correspondence from the copyright holders suggested protective order protection: restricting access, use, disclosure and copying; restrictive legend on the produced materials; requiring return or destruction; and sealing the record. The matter was referred to the trial court for further consideration of protective order provisions and any examiner's ethical and professional obligations and for the exercise of its discretion.Harabedian v. Superior Court (1961) 195 Cal.App.2d 26.(Combination of notice of motion plus order can provide specifics.)
Bittle v. Superior Court (1976) 55 Cal.App.3d 489.
PHYSICIAN'S WRITTEN REPORT [C.C.P. §2032(h) extensive changes in 1986]
Examinee right to report even if otherwise doesn't exist
Kennedy v. Superior Court(1998), 64 Cal.App.4th 674
Cf.C.C.P.§2032(j) reciprocal disclosure of "existing" reportsExaminee right to report even if physician is consultant and withdrawn as expert
Kennedy v. Superior Court(1998), 64 Cal.App.4th 674
Plaintiff must produce report of consultant doctor who will not be called as witness, i.e., waiver of work product.
Kennedy v. Superior Court(1998), 64 Cal.App.4th 674
Cf prior law Queen of Angels Hospital v. Superior Court (1976) 57 Cal.App.3d 370.(Work product might apply if physician does not conduct exam and only submits opinion based on hypothetical (Dictum p. 374).)Report must be produced even though there is no order for the exam and it is done by stipulation.
Grover v. Superior Court (1958) 161 Cal.App.2d 644, 649.(Access to notes of examining physician.)
Edwards v. Superior Court (1976) 16 Cal.3d 905, 912.(Psychiatric exam, dictum.)
DEPOSITION OF EXAMINING
PHYSICIAN
Right to depo even if expert "withdrawn" & designated as "consultant"
Kennedy v. Superior Court(1998), 64 Cal.App.4th 674
Limited only by requirement to show good cause
Shapira v. Superior Court(1990), 224 Cal.App.3d 1249 at p.1255
SANCTIONS FOR FAILURE TO
APPEAR AT MEDICAL EXAM
Ebel v. Superior Court (1974) 34 Cal.App.3d 934.[Prior law; cause off calendar, physician's fee, attorney's fees.]
Possible authority for sanctions re: stipulated exam:
Grover v. Superior Court (1958), supra, at p. 649.(Stipulated medical exam equivalent to court ordered exam. "A contrary ruling would but consume the time of trial court and counsel by encouraging formal motions to be made when there is no real objection . . . to physical examination."]
