(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)
Moreover, the Notice of Independent Medical Examination of plaintiff expressly states: Further, the scope of said examination shall include and require a history to be given by plaintiff, as well as possible X-rays and any and all clinical and laboratory tests as required by the examining physician. Such X-rays are necessary in light of plaintiff’s alleged orthopedic injuries and claim of post-trauma arthritis.
This is clearly improper and grounds for objection. As stated by Weil & Brown, supra, Questioning plaintiff regarding medical history? The statute mentions only a physical examination. Nothing is said about the right to question the plaintiff regarding his or her injuries or prior medical history. Id., § 8:1520. Other demands are improper (e.g., demands for a complete medical history). Plaintiff may object and refuse compliance. Id., § 8:1529.
As for X-rays, Weil & Brown is again instructive:
Limit on X-rays: The Discovery Act reflects public concern regarding excessive exposure to X-rays. It allows an examinee to avoid submitting to X-ray examination by giving the examiner access to existing X-rays of the same portion of the examinee’s body. In such event, no additional X-rays may be taken without the examinee’s consent or on court order for good cause shown. [Ca Civ Pro § 2032.520]. Id., § 8:1580.
Finally, one of the terms by which Plaintiff agreed to submit to the defense medical examination was that Plaintiff’s counsel receives a copy of the report, including any record review, within five days of the Defendants’ receipt of said documents. Defendants’ counsel would not agree to provide a copy of any record review, but merely with a copy of the “IME report.” This is clearly improper, as the plaintiff is entitled to receive a copy of the full report. CCP § 2032.610.
See also Kennedy v. Sup. Court (1998) 64 Cal.App.4th 674, 678 ( The trade-off is clear: if one party to personal injury litigation is required by their opponent to ex parte application for a continuance of the trial date, discovery cut-off date or deadline for the exchange of expert witnesses. Indeed, since all discovery has been completed in this case with the exception of the defense medical examination of the Plaintiff, extending the discovery cut-off date would serve no purpose other than to encourage further delays to the prejudice of the Plaintiff.
It is difficult to imagine why Defendants are making these two ex parte applications other than to avoid going to mediation and/or to trial. It is the Defendants’ conduct that has caused the delay in proceeding with the court-ordered mediation and it is the Defendants’ intransigence in refusing to comply with Code of Civil Procedure §§ 2032.220 and 2032.610 that have spawned Plaintiff’s legitimate and well-taken objections to the scope and conduct of the medical examination of the plaintiff Milton White as reflected in the Notice. Whatever complaints Defendants are now raising with respect to their medical examination of the Plaintiff are self-inflicted, and it is entirely within the defendants’ power to remedy them. For tactical reasons known only to the defendants, they choose not to do so.
Accordingly, for all the reasons stated herein, both of defendants’ ex parte applications should be denied in their entirety.
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