2011-00112134-CU-MM

Thuy Tien Nguyen vs. Sutter Memorial Hospital

Nature of Proceeding:     Motion to Compel Answers to Deposition Questions

Filed By:   Ratinoff, Eric J.

***  If oral argument is requested, the parties shall at the time the request is
made notify the court clerk and opposing counsel which of the seven (7)
deposition questions will be addressed at oral argument.  ***

Plaintiff’s motion to compel defendant Dr. Truong’s answers to deposition questions is
GRANTED in part and DENIED in part, as follows.

At the outset, the Court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally.  This serves to highlight the critical
need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts
before filing any discovery motion.  The decision of  Townsend v. Superior Court (1998)
61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is
not intended to be some perfunctory formality but rather it “requires…a serious effort at
negotiation and informal resolution.” (Id., at 1438.)

This is a medical malpractice action arising out of plaintiff’s visit to the emergency
room after a fall.  Plaintiff seeks answers to seven (7) questions put to Dr. Truong
during the latter’s deposition.  Defendant opposes, arguing that the questions
impermissibly seek his “knowledge acquired prior to treating plaintiff as opposed to his
actual thought processes while treating plaintiff” and “require an after-the-fact expert
opinion dealing with the standard of care, which Dr. Truong is not obligated to provide
unless and until he is disclosed as an expert…” (Oppos., p.1:25-p.2:3.)

Question No. 1.  The motion is denied since there is no complete question presented,
making it impossible for the Court to determine whether the deponent could or should
answer it.  Instead, the record shows that plaintiff’s counsel began to ask, “Okay.  Why
didn’t –” before being interrupted by an objection.

Question No. 2.  The motion is granted.  Here, the question was whether the doctor
was “aware, as a physician, that when there’s bleeding that may be related to the
tympanic membrane, that [this] may be evidence of a skull fracture?”  The Court finds
that this question relates to his thought process for the care of plaintiff and does not
require an after-the-fact expert opinion.  Moreover, defendant’s suggestion that
information sought is inadmissible is of no consequence as discovery is permitted
where it is reasonably calculated to lead to admissible evidence.

Question No. 3.  The motion is granted.  The doctor was asked, “Do you know why
you didn’t order a CT scan for [plaintiff]?”  Defendant’s counsel objected, claiming this
was a “standard of care” question.  The Court disagrees and finds insufficient
justification for not answering the question particularly since the standard for
admissibility does not govern discovery.

Question No. 4.  The motion is denied.  Plaintiff asked if “there any way…to
definitively rule out intracranial hemorrhage or fracture absent imaging?”  This
questionably impermissibly seeks an expert opinion from defendant.

Question No. 5.  The motion is granted.  The question was whether, before plaintiff
was discharged from the Emergency Department, the doctor formed “a differential
diagnosis that included intracranial hemorrhage or fracture?”  This question is
permissible as it relates to Dr. Truong’s thought process relating to plaintiff’s care and
it does not, as the opposition suggests, require an after-the-fact expert opinion on the
standard of care.  That the medical records themselves appear to provide an answer
to this question and/or the doctor was previously asked this same question do not,
without more, warrant a refusal to respond.            Question No. 6.  The motion is granted.  Here, the doctor was asked why he “did not
[provide] an order that [plaintiff] be provided a head injury and instruction sheet?”  The
Court finds that this question relates to his thought process for the care of plaintiff and
does not require an after-the-fact expert opinion.  The fact that the doctor may have, in
response to other questions, testified to the same facts on which his decision was
based does not, without more, justify a complete refusal to respond to this question.

Question No. 7.  The motion is denied since there is no complete question presented,
making it impossible for the Court to determine whether the deponent could or should
answer it.  Plaintiff began to ask, “Do you know why you didn’t keep her – -” before the
question was interrupted by defendant’s counsel’s comment that the doctor did keep
plaintiff for an extra hour.  Without a complete question, the Court cannot grant the
motion as to this Question No. 7.

No monetary sanctions were requested by either side.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)