A Practical Guide to Code of Civil Procedure Section 2032: Taking Control of Defense Medical Examinations
September 2000
This article originally appeared in the Volume 27, Number 7, September 2000 issue of the Consumer Attorneys Association of Los Angeles' Advocate. Copyright © 2000 Consumer Attorneys Association of Los Angeles. All rights reserved. Reprinted with permission.
In personal injury cases, defendants usually serve a Demand for Physical Examination of the plaintiff by a doctor of their choosing. The right to a physical examination was codified by the California State Legislature in Code of Civil Procedure section 2032. This article addresses the practical effects of complying with this statute, while simultaneously protecting the rights of your client.
I. California Code of Civil Procedure Section 2032
A demand by the defendant for the physical examination of a plaintiff is controlled by Code of Civil Procedure section 2032. Section 2032 was adopted by the California legislature in 1986, and has sustained only a few minor amendments since that time. The notion that the complainant will be forced to submit to an "independent" medical examination has been widely accepted since 1957, and infrequently criticized. As a testament to the importance of this medical examination, the physician-patient privilege is abrogated for the purposes of a defense physical examination. See, e.g. San Francisco Unified School District v. Superior Court, 55 Cal.2d 451, 11 Cal. Rptr. 373 (1961).
A defendant in a personal injury action has the right to one physical examination of the plaintiff, without leave of court, simply by serving a demand on the plaintiff. Subsection (a) of section 2032 establishes that any party to the litigation may make the demand, but the demand is only valid when the plaintiff's physical condition is "in controversy." "In controversy" means the specific injury or condition that is the subject of litigation. See Roberts v. Superior Court, 9 Cal.3d 330, 337, 107 Cal. Rptr. 309, 313 (1973). The physical examination is limited to whatever portion of the complainant's body is "in controversy" in the lawsuit. Obviously, then, a plaintiff who is complaining of a severe knee injury need not be subjected to an examination of her arm. However, even if the plaintiff suffers multiple injuries; under a strict reading of the code, the plaintiff need only submit to one examination. So if the plaintiff suffers torn ligaments in her knee as well as severe scarring, she need not submit to an examination by both an orthopedist and a plastic surgeon without the agreement of counsel or a court order compelling the second exam.
Only certain persons can conduct the physical examination. Subsection (b) of section 2032 sets forth those who are qualified to conduct the examination. The statute requires that only a licensed physician or other appropriate health care practitioner may perform the examination. It is critical to remember that the medical examiner is not impartial. She represents the interests of the party that retains her, so do not be fooled by the label "independent medical examination!" See Urbaniak v. Newton, 226 Cal. App.3d 1128, 1135, 277 Cal. Rptr. 354, 357 (1991).
Subsection (c) of section 2032 controls the logistics of the examination, and provides the plaintiff with some important safeguards: (1) the examination must take place at a location within seventy-five miles of the plaintiff's residence; (2) the examination cannot include any diagnostic test or procedure that is painful, protracted, or intrusive (generally including x-rays); and (3) the examination must be scheduled at least thirty days after the service of the demand on the plaintiff. Even if the plaintiff does not reside in California, the examination must take place within the seventy-five mile radius of her home. But the court may order the out-of-state plaintiff to travel to wherever the doctor is located upon a showing of good cause. Such an order should be conditioned upon the moving party paying the examinee's reasonable travel costs and expenses.
II. The Rationale for the Demand for Physical Examination.
The physical examination of a plaintiff is clearly the best method of evaluating claims of injury, illness, or incapacity claimed by that party. Ideally, the physical examination in personal injury cases provides the defendant with the opportunity to have a doctor of their attorney's or carrier's choice examine the plaintiff and "independently" evaluate the claimed injury. Without this "independent" examination, the defense would be completely at the mercy of the plaintiff's witnesses and experts. See Mercury Casualty Co. v. Superior Court, 179 Cal. App.3d 1027, 1033, 225 Cal.Rptr. 100, 103 (1986). Compare this with the reality that many times the defense is just setting up an experienced defense physician to testify later that her opinions (that the plaintiff is not seriously hurt, is a malingerer, has not reasonably needed the extent of the treatment obtained, etc.) are based upon her personal medical examination of the plaintiff. As a further result of the examination, if the plaintiff demands a copy of the defense medical examination report, the defendant may be able to acquire reports that are otherwise protected from discovery. Following the receipt of the demand, counsel for the plaintiff must timely respond and should consider the "risk" of having to provide other reports in deciding whether or not to demand a copy of the report prepared by the defense medical examiner.
Although generally unlikely, it is possible that the examiner's findings will not be helpful to the defense. The examiner and/or his report, might actually support, or even amplify, the injured party's claim. The defense examiner will be required to testify about his findings, both in deposition and in trial, so the defense's expert could become a tremendous help to the plaintiff and her case.
III. The Presence of Counsel at the Physical Examination
The plaintiff to be examined is allowed to have counsel present at the examination, and counsel may record the session. C.C.P. § 2032(g)(1). Counsel may choose the method of recording the examination, and has the option of tape recording the session, or having a court reporter present. SeeC.C.P. § 2032(g)(s); see also Gonzi v. Superior Court, 51 Cal.2d 586, 335 P.2d 97 (1959). An objective record ensures the accuracy of what transpired and avoids unseemly disputes at trial between the attorney and the physician. However, videotaping of the physical examination is not permitted. See Ramirez v. MacAdam, 13 Cal.App.4th 1638, 16 Cal.Rptr.2d 911 (1993). The court held that an audio record sufficiently satisfied the purpose of preserving an objective record - videotaping is too invasive of the plaintiff and doctor's privacy rights.
Plaintiff's counsel must be permitted to observe every phase of the examination. The court has no discretion to exclude counsel from any portion of the exam. See Munoz v. Superior Court, 26 Cal.App.3d 643, 645-646, 102 Cal.Rptr. 686, 687 (1972). Counsel may also designate a third-party representative to attend and record the examination, so long as the authority of the representative is confirmed in writing and signed by counsel. The presence of counsel at the examination will assure that the examination is restricted to the scope of the issue or injury "in controversy" in the litigation, and will prevent improper questioning by the examiner.
Most likely, no other persons aside from the examiner, the examinee, and counsel (or counsel's authorized representative) will be present at a physical examination. Sometimes, however, the presence of another person is necessary. For example, the plaintiff may require an interpreter, and the Evidence Code grants that right. See Evid. C. § 755.5(a). Section 755.5(a) provides that if the examinee is not proficient in speaking and/or understanding English, an interpreter is necessary during a medical examination. Beyond that situation, the presence of any other person is within the sound discretion of the trial court. Sometimes the plaintiff may wish to have his treating physician present for the exam. The court will determine whether it will allow that doctor's presence. See e.g., Long v. Hauser, 52 Cal.App.3d 490, 493, 125 Cal.Rptr. 125, 128 (1975).
If the examiner becomes abusive to the examinee, or goes beyond the scope of the examination, counsel for the plaintiff has the right to terminate the examination. Likewise, if the examining doctor attempts to utilize unauthorized tests or procedures, counsel may suspend the examination. The plaintiff may then move for a protective order as well as sanctions against the requesting party. The burden will be on the losing party to show substantial justification for its conduct. See C.C.P. § 2032(g)(1); see also C.C.P. § 2023(b)(1).
IV. The Written Report
The plaintiff may demand a copy of "a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner, and a copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner." C.C.P. § 2032(h). The demand for the report must be in writing, and must be served on the defendant. If the plaintiff decides to demand a report, it must be delivered within thirty days of the demand or within fifteen days of trial, whichever is earlier.
Interestingly, the statute does not address what happens when the examining physician does not prepare a report - can the plaintiff then require the physician to prepare a report and produce it? In 1998, the California Court of Appeals addressed that very question. See Kennedy v. Superior Court, 64 Cal.App. 4th 674, 75 Cal.Rptr.2d 373 (1998). In Kennedy, the plaintiff slipped and fell in a Lucky grocery store. 64 Cal.App. 4th at 676, 75 Cal.Rptr.2d at 373. Lucky demanded that the plaintiff submit to a medical examination pursuant to Code of Civil Procedure section 2032. The plaintiff complied with the Demand for Physical Examination and then demanded a report of the examination, which she was entitled to pursuant to section 2032(h). Lucky refused her request, and informed the plaintiff that the physician had not prepared a report, so there was no report to produce. The plaintiff brought a motion to compel the production of a report. The trial court denied the motion, indicating that the examining doctor could not be compelled to prepare a report under section 2032.
On appeal, Lucky argued that the statute only requires disclosure of a defense examiner's report if the examiner actually prepared a report. The appellate court disagreed: "Although there is a general reluctance to order parties to produce reports not in existence, the statute clearly requires that a party who submits to a physical examination is entitled to a report of that examination, which must contain certain specified information. The trade-off is clear: if one party to personal injury litigation is required by his opponent to submit to a medical examination, at the very least he is entitled to a
report of the information obtained by the adversary in litigation." Kennedy, 64 Cal. App.4th at 678, 75 Cal.Rptr.2d at 375. Thus, the holding is clear -- a plaintiff is always entitled to a report of compulsory physical examination.(1)
V. A Checklist of the Plaintiff's Rights with Regard to a Section 2032 Physical Examination.
The plaintiff retains many rights when she agrees to submit to the mandatory physical examination. These include:
1. The plaintiff may not agree to comply with the demand for a physical examination subject to conditions and limitation as set forth in the written response to the demand;
2. The plaintiff is allowed to limit the length of the examination to a reasonable time;
3. Absent a court order to the contrary, the plaintiff is only required to submit to one examination, even where multiple injuries exist;
4. The examiner must be a licensed physician or a licensed health care practitioner;
5. The examination must take place at a location within seventy-five miles of the plaintiff's residence;
6. The plaintiff may have her attorney or authorized representative accompany her to the examination;
7. The plaintiff has the right to bring a court reporter and/or an audio tape recorder to the examination;
8. No painful, protracted, or intrusive procedures of the plaintiff are permitted;
9. The plaintiff may refuse to submit to x-rays where previous x-rays of the same area are available;
10. The examination must be limited to the injury or illness "in controversy;"
11. The examiner must limit her questioning to the specific injury at issue in the case;
12. The examiner is entitled to a medical history only insofar as it is directly relevant to the injury or claim;
13. The plaintiff has the right to refuse to disclose a detailed medical history to the examiner;
14. The plaintiff has the right to demand a written report of the examination, prepared by the examiner;
15. The plaintiff has the right to depose the examiner, even if the defendant does not designate the examiner as an expert for trial.
Should the defendant invade any of these rights, the plaintiff may refuse to submit to the medical examination, or may terminate an existing medical examination.
VI. Plaintiff's Response to a Demand for a Physical Examination
The plaintiff must respond to the demand pursuant to section 2032 in writing. When the plaintiff is served with a demand for a physical examination, the plaintiff may respond in one of three ways: (1) the plaintiff can agree to the demand as it is set forth; (2) the plaintiff can refuse to comply with the demand, in which cases he must state the reasons for the refusal in the reply; or (3) the plaintiff can agree to comply with the demand subject to modifications and/or limitations as specified in the response. See C.C.P. § 2032(c)(5). If the plaintiff fails to respond to the demand in a timely manner, i.e., within twenty days after service of the demand, then any objection to the demand is waived. C.C.P. § 2032(c)(6). If the defendant finds that the modifications or conditions are unacceptable, then the defendant has the option of bringing a motion to compel compliance with the demand as originally served. Although there are no reported cases on point, a careful reading of the code seems to support the conclusion that if the defendant fails to bring a motion to compel compliance with the demand, then all reasonable conditions imposed in the response will govern the examination.
VII. Conclusion
It is almost inevitable that the plaintiff in a personal injury case will be subjected to a physical examination by an examiner chosen by the defense counsel or carrier. In order to protect the plaintiff's rights, it is incumbent upon counsel to serve a timely and comprehensive response to the defendant's Demand for Physical Examination, attend the examination or send a representative, record the session, and be certain to limit the examination to its proper scope. Following these procedures will ensure that the plaintiff is not subjected to an unreasonable or unduly invasive defense medical examination.
____________________
Related Links