Personal Injury Lawyer Blog
(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.)
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ NOTICE OF MEDICAL EXAMINATION OF PLAINTIFF ARE WELL-FOUNDED
The relevant declarations and exhibits thereto paint a clear picture of the Defendants’ intransigent refusal to comply with Code of Civil Procedure §§ 2032.220 and 2032.610, necessitating plaintiff’s proper objections.
Plaintiff’s Notice of Objection set forth objections to defendants’ Notice of Independent Medical Examination, specifically that (a) the examination of a doctor chosen by the defense is not an independent medical examination, but rather a defense medical examination; (b) the date of the examination had not been cleared with Plaintiff or his counsel prior to its setting; (c) the statement defendant is informed and does not believe any clinical or laboratory testing will be necessary is ambiguous, as the statement must state that no clinical or laboratory testing will be performed; (d) x-rays as requested will not be allowed as said x-rays have not been shown to be necessary or indicated; and (e) the clinical and laboratory requests referred to in defendants’ Notice will not be allowed as they are not indicated and such testing is inconsistent with the statement in their notice that “defendant is informed and does not believe any clinical or laboratory testing will be necessary.”
The propriety of plaintiff’s objection to calling the medical examination an “independent medical examination” or “IME” is obvious. Since the examining physician was chosen solely by the defendants and is paid by the Defendants, there is nothing “independent” about his examination of plaintiff, and to suggest by nomenclature that it is “independent” is deliberately misleading and deceptive. (Evidence Code § 352.)
Moreover, CCP § 2032.220(a) provides that only a physical examination of the injured plaintiff is authorized by demand, and the physical examination is limited to whatever portion of plaintiff’s body or conditions are “in controversy” in the lawsuit. Further, the defendant is entitled only to an examination of plaintiff’s person. This does not include “any diagnostic test or procedure that is painful, protracted or intrusive.” See Weil & Brown, Id., §§ 8:1519 – 8:1520.
Nevertheless, defendants refused to state with certainty that the testing of the plaintiff would not entail invasive or painful procedures. (See Part 5 of 5.)
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