Gray v.  Jesuit Retreat Center of Los Altos		CASE NO.
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER:19

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motion of Defendant Jesuit Retreat Center of Los Altos to allow multiple medical and mental evaluations of Plaintiff Beth Gray was argued and submitted.[1]

Plaintiff filed formal opposition to the motion.

1. Statement of Facts.

Plaintiff was attending a retreat at the Jesuit Retreat Center in Los Altos.  This trip and fall case occurred on 16 November 2011.  She does not remember the details of the fall because of amnesia caused by the concussion.  Three to four retreatants assisted her.  One of them, a physician, determined that she was okay.

She did not seek medical assistance until 18 November 2011.  She was taken by ambulance to El Camino Hospital.

In her deposition testimony she is complaining of orthopedic neurologic and a worsening of posttraumatic stress disorder.  She claimed she can no longer work as a registered nurse.  She is treating with a psychiatrist, neurologists, orthopedist and her primary care physician.  She has undergone neuropsychological testing

1. Discovery Dispute.

Plaintiff is claiming over $100,000 in medical special damages, not including future medical costs.

Following a case management conference on 15 July 2014, defense counsel asked counsel for Plaintiff about stipulating to allow more than one medical examination.  Several attempts at discussing this matter have not been productive.

Defendant seeks to compel Plaintiff to submit to four examinations.  The examiners are proposed as John Missirian, M.D. (orthopedic surgeon), Ronald Roberts, Ph.D. (neuropsychologist), Robert Weinmann, M.D. (neurologist) and Bernard S. Rappaport, M.D. (psychiatrist).

In opposition to this motion, Plaintiff states that she is not alleging any mental pain and suffering over and above that which is normally associated with a slip and fall.

 

III.     Analysis.

Code of Civil Procedure (CCP) Section 2032.220 authorizes a defendant to demand a physical examination of a plaintiff in a personal injury action. The demand “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination.” CCP Section 2032.220(c).

A plaintiff to whom a demand for a physical examination is made is required to respond by a written statement, which must be served within 20 days of the service of the demand. CCP Section 2032.230(b). Counsel for Demko has not made a code compliant demand for a medical examination of Claughton.

However, Defendant is correct that there are other procedures to obtain a physical examination apart from that stated in Code of Civil Procedure, § 2032.210 et seq.  Code of Civil Procedure, § 2032.310[2] states:

(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.  (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.  (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.

See also Shapira v. Superior Court (1990) 224 Cal. App. 3d 1249, 1254-1255;[3] Abex Corp. v. Superior Court (1989) 209 Cal. App. 3d 755, 758.[4]

Code of Civil Procedure, § 2032.320 states, in part, that

“(a) [t]he court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . .(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: 1) The court determines that there is good cause for the travel involved.  (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”

It is well-established that a doctor may inquire about a patient’s medical history during an examination. (See Sharff v. Super. Ct. (1955) 44 Cal.2d 508, 510 [an examining doctor should “be free to ask questions as may be necessary to enable him to formulate an intelligent opinion regarding the nature and extent of the plaintiff’s injuries”]; see also Golfland Entertainment Centers, Inc. v. Super. Ct. (2003) 108 Cal.App.4th 739.)

This Court has reviewed the discovery responses attached to the moving papers and notes that on several occasions Plaintiff has testified that after treating physicians told her that the fall exacerbated mood liability, depression, posttraumatic stress disorder and other neurologic and orthopedic complaints.

This Court does not understand some of the objections raised by the opposition papers.  The notice of the examinations adequately summarizes the nature of the examinations to be performed by each healthcare practitioner.

The Court does not understand the timeliness issue raised.  The first examination is calendared for 15 January 2015, almost a month away.

Counsel for Plaintiff states that she is not alleging any mental pain and suffering over and above that which is normally associated with a slip and fall.  In support of that position, Plaintiff cites Reuter v. Superior Court (1979) 93 Cal. App. 3d 332.  That case is not applicable.  In that matter, the Court allowed the defense to obtain a psychiatric examination of the child but not of the mother who had not placed her mental status into controversy.  In that case, the father was killed and the child injured in an automobile accident.  The mother appeared individually in her cause of action for wrongful death; as executrix of the estate of her husband; and as guardian ad litem for her son in his cause of action for personal injuries.

The motion of Defendant Jesuit Retreat Center of Los Altos to allow multiple medical and mental evaluations of Plaintiff Beth Gray is GRANTED as prayed for.  Counsel are to meet and confer on any transportation issues which are raised by the opposition papers.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] In the interests of full disclosure, this Court will inform counsel that it has attended functions at the Jesuit Retreat Center of Los Altos, formerly known as the Jesuit Retreat House.  The Court also notes that Plaintiff attended Los Altos High School as did this Judge who was three years ahead of Plaintiff.  This Court does not believe these matters to be significant in the determination of this interesting matter.

[2] Additionally, in lieu of the statutory procedures set forth in CCP Section 2032.220 parties may stipulate in writing for a physical examination on whatever terms and conditions they choose. CCP Section 2016.030.

[3] “Section 2032, subdivision (c)(2) provides that a defendant is entitled to one physical examination on demand.  Section 2032, subdivision (d) provides, in part, for additional examinations on court order based on good cause: “If any party desires to obtain discovery by a physical examination other than that described in subdivision (c), or by a mental examination, the party shall obtain leave of court . . . . [para.] The court shall grant a motion for a physical or mental examination only for good cause shown.”

[4] “In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, provided the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.  (citation omitted.)  If such a ‘diagnostic test and procedure’ is sought or if multiple examinations are desired, the defendant must proceed by noticed motion.”  (quotation marks edited.)