Case Number: BC670821 Hearing Date: June 06, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Tristan C. HAtfield,

Plaintiff,

v.

Lucille Ankilsby Renville, et al.,

Defendants.

Case No.: BC670821

Hearing Date: June 6, 2018

[TENTATIVE] order RE:

motion to compel Plaintiff’s attendance at physical examination

BACKGROUND

This action arises out of a motor vehicle accident that occurred on August 22, 2015. The complaint, filed August 3, 2017, alleges a single cause of action for negligence against all defendants.

Defendants Lucille Ankilsby Renville and Kathy Kilsby (“Defendants”) move to compel the attendance of Plaintiff Tristan Hatfield (“Plaintiff”) at his physical examination. Plaintiff has objected to Defendants’ initial demand for Independent Medical Examination (“IME”). As such, Defendants have brought the instant motion to compel. Plaintiff opposes the motion, and Defendants have replied.

LEGAL STANDARD

CCP §2032.020 provides that a party may obtain discovery by means of a physical or mental examination of a party to the action in any action in which the mental or physical condition of that party is in controversy in the action. (CCP §2032.020(a).) This examination must be conducted by a licensed physician or other appropriate licensed health care practitioner. (CCP §2032.020(b).)

CCP §2032.220 provides that in any case in which a plaintiff seeks the recovery of personal injuries, any defendant may demand one physical examination of plaintiff, so long as the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive, and is conducted within 75 miles of the residence of the examinee.

“If a plaintiff to whom a demand for a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand.” (CCP §2032.240(a).) “The defendant may move for an order compelling response and compliance with a demand for a physical examination.” (CCP §2032.240(b).)

DISCUSSION

Motion to Compel

Defendants move for an order compelling Plaintiff’s attendance at his physical examination with board certified orthopedic surgeon, Ronald S. Kvitne, M.D. at 6801 Park Terrace, Suite 500, Los Angeles, California 90045 on June 11, 2018 beginning at 1:30 pm. According to the demand, the examination will include “a taking of the patient’s history of the injury and of Plaintiff’s recent medical history of similar injuries or complaints to those areas claimed to have been injured in this accident; diagnostic examination and manipulation of Plaintiff’s body, including standard orthopedic examination; and such other tests and procedures of all areas of the body Plaintiff claims have been injured in the accident and all related body structures as may be deemed necessary to determine the existence [of Plaintiff’s injuries].”

Plaintiff objects to the demand on several grounds. At issue in this motion is primarily Plaintiff’s objection to Dr. Kvitne taking a medical history of Plaintiff during the examination. Plaintiff contends that the taking of a “medical history” is not explicitly allowed in the Civil Discovery Act, and therefore, Defendants’ medical expert cannot ask questions related to Plaintiff’s medical history.

The Court does not find Plaintiff’s arguments as to the medical history to be persuasive. While CCP § 2032.220 does not explicitly state that a medical history is permitted as part of the physical examination, CCP §2032.610(a)(1) provides that Plaintiff may demand a copy of the examiner’s written report which must include the history of the examinee. Thus, there is a statutory basis to support the conclusion that a medical history was contemplated as a probable part of a medical doctor’s examination of any party. Further, in Plaintiff’s objections to the initial demand, Plaintiff demanded that Plaintiff be provided with a copy of any written report produced by Dr. Kvitne, and that this “detailed written report [set] out the history, examinations, finding[s], . . . diagnosis, prognosis, and conclusions of the examiner.” (Def. Exh. B, at ¶ 8.) Thus, Plaintiff acknowledged in the objections that the examiner is required to provide a medical history after the examination.

Further, in Golfland Entertainment Centers, Inc. v. Superior Court (Golfland) (2003) 108 Cal.App.4th 739, the Court of Appeal held that a medical history was permissible during an Independent Medical Examination. In Golfland, the defendant served a demand for independent medical examination on the plaintiff, but the plaintiff objected to the medical examination on grounds that a “narrative history” should not be elicited from the plaintiff because the plaintiff had already been deposed on the subject of the accident. (Id. at 743.) The plaintiff was 10 years old at the time of the incident, and was approximately 12 or 13 years old at the time the medical examination was to take place. (Ibid.) The trial court ordered that the doctor could inquire as to the plaintiff’s medical history but could not “require or elicit narrative responses” from plaintiff. (Ibid.) The Court of Appeal held that the trial court had the discretion to prohibit the doctor from eliciting a third version of the facts and circumstances of the accident from the plaintiff, but “the trial court could not properly limit [the doctor’s] questioning of plaintiff with respect to other matters affecting plaintiff’s . . . condition, such as symptoms. . .” (Id. at 746.) The Court of Appeal then modified the trial court’s order and replaced the language referring to “narrative” answers with more clear language. (Ibid.) The Golfland court concluded its analysis on this issue by stating the following: “We add that we do not suggest a limitation such as that imposed by the trial court on the examining expert (even as modified by this court) is a preferred procedure that should be used by trial courts. We hold only that the trial court’s order, as modified, is within the ‘broad’ discretion of the trial court.” (Ibid.)

Here, much like the plaintiff in Golfland, Plaintiff is objecting to the taking of his medical history on grounds that all the information related to his present condition has been provided in his discovery responses and at his deposition. Unlike in Golfland where the court sought to protect a child plaintiff from a third review of the events, Plaintiff here has not presented any evidence beyond the existence of the prior discovery to show the need for an order limiting or preventing the Defense medical examiner from taking a full medical history related to the incident or prior to the incident. A doctor must be able to inquire into the nature of the injury and the prior history of injury in order to accurately diagnose a patient. Further, the demand for examination limits the inquiry into the Plaintiff’s medical history to a “history of similar injuries or complaints to those areas claimed to have been injured in this accident.” (Def. Exh. A., at pg. 2.) As such, the Court finds Plaintiff’s objection to the taking of his medical history to be without merit, and Dr, Kvitne will be allowed to ask questions relating to Plaintiff’s medical history as limited by the Defendant’s demand for examination.

Sanctions

Both parties request sanctions. Under CCP § 2032.250 the court “shall” impose monetary sanctions on any party who unsuccessfully makes or opposes a motion to compel compliance with a demand for physical examination “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” The Court finds that Plaintiff acted with substantial justification in opposing this motion. The depth of medical history allowed in an IME is not a clearly established legal principle. Thus, Plaintiff was justified in opposing Defendant’s motion.

Plaintiff’s request for sanctions is denied. While there was some difficulty in the meet and confer process, Defendants did attempt to meet and confer before the motion was filed. In addition, the Court finds no other abuses of the discovery process perpetuated by Defendants on the record before the Court.

Accordingly, Defendants’ motion to compel the physical examination of Plaintiff under the terms stated in the demand for physical examination filed with the Court as Exhibit A, and modified so that the examination will take place on June 11, 2018 as stated in the supplemental pleading filed on May 1, 2018, is granted.

CONCLUSION AND ORDER

Defendant’s motion to compel Plaintiff’s attendance at his physical examination is granted. Plaintiff is ordered to submit to a physical examination by Dr. Kvitne, M.D. at 6801 Park Terrace, Suite 500, Los Angeles, California 90045 on June 11, 2018 beginning at1:30 pm.

The request for sanctions is denied as to both parties.

All parties should note that the hearing on this motion and all future court dates will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendants are ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 6, 2018 ___________________________

Elaine Lu

Judge of the Superior Court