Opinion
No. 7.
Argued March 26, 1973. —
Decided May 14, 1973.
APPEAL from an order of the circuit court for Rock county: ARTHUR L. LUEBKE, Circuit Judge. Reversed and remanded with directions.
For the appellants there was a brief by Wickhem, Consigny, Sedor, Andrews Hemming, S.C., attorneys, and Richard E. Hemming of counsel, all of Janesville, and oral argument by John C. Wickhem and Richard E. Hemming.
For the respondents there was a brief by Conway Conway of Baraboo, and oral argument by Kenneth H. Conway and Vaughn S. Conway.
The underlying action is a personal injury automobile-type negligence action. The plaintiffs, Kirk P. Whanger and his wife Anne A. Whanger, allege their car was struck from the rear on October 14, 1966, by a car driven by the defendant, Dennis Turner, and insured by the defendant, American Family Mutual Insurance Company.
The action was commenced on October 9, 1969, and on October 17, 1970, the Whangers sought to amend their complaint so as to allege Mr. Whanger suffers from a heart problem as a result of the accident.
On December 16, 1970, the defendants served an order to show cause on plaintiffs as to why the plaintiffs should not be required to admit or refuse to admit that the heart attack suffered by Kirk Whanger on May 29, 1968, was not connected with or caused by the accident of October 14, 1966, and that the accident in no way caused his cardiac problems. The order to show cause further requested that the allegations of the complaint as to the heart injury be stricken if the plaintiffs admitted the facts contained in the demand to admit or deny, and that if the plaintiffs did not admit these facts that the trial date be adjourned and that the defendants be permitted to have the plaintiff, Kirk Whanger, examined by a heart specialist.
See sec. 889.22, Stats.
On December 22, 1971, the matter was argued before the court. The court found there was inadvertence, excusable neglect and a misunderstanding between the parties due to facts beyond their control. The court further found both parties acted in good faith and ordered that, in the interest of justice, the plaintiffs be relieved from the consequences of failing to admit or deny. The court orally stated it ". . . further intends, by changing the trial date, to permit a further medical examination of the Plaintiff, who will cooperate, and I understand that the defendant will take care of the necessary expenses and the arrangements. . . Mr. Hemming the Court's signature, and have Mr. Conway [the plaintiffs' attorney] approve it as to form outlining these proceedings."
Up to this point in the record there was no indication the plaintiffs wanted their attorney present at the medical examination.
On December 27, 1971, Hemming sent Conway two copies of the proposed order asking for the latter's approval and signature. The proposed order, in part, stated:
"It Is Further Ordered that plaintiff Kirk P. Whanger shall submit to and cooperate in a further independent medical examination arranged for and paid for by defendants pursuant to statute; said independent medical examination shall pertain to plaintiff Kirk P. Whanger's alleged heart condition and related alleged injuries.
"It Is Further Ordered that a copy of the independent medical report made as a result of said examination be tendered to plaintiffs' attorneys at least 30 days prior to the time set for trial herein."
This order makes no mention of the presence of plaintiffs' attorney at the medical examination. There was no reply by Conway; on January 17, 1972, Hemming sent two letters. The first one to Conway asking him to sign the order and informing him a copy of this letter went to Judge LUEBKE. The second letter asked Judge LUEBKE to sign defendants' proposed order forthwith. Hemming's letters also notified plaintiffs that an independent medical examination was set for February 7, 1972, to be performed by Dr. Robin Allin, a cardiovascular specialist. On January 20th, Conway wrote to Judge LUEBKE telling the latter he objected to Hemming's proposed order. Conway stated: ". . . Some of the changes that were not agreed upon over the telephone were to be included in the Order which I have prepared and am enclosing, a copy of which I am sending to Mr. Hemming. . . ." Conway's proposed order was signed on January 24th and entered on February 4th by Judge LUEBKE. The order, in part, stated:
"The Order to Show Cause on motion of defendants American Family Mutual Insurance Company and Dennis E. Turner having come on for hearing on the 22nd day of December, 1971, and the court having reviewed all of the documents on file and having heard the arguments of counsel, and being fully advised in the premises;
". . .
"It Is Further Ordered that plaintiff Kirk P. Whanger shall submit to and cooperate in a further independent medical examination arranged for and paid for by defendants pursuant to statute; that one of the plaintiffs' attorneys shall be present with plaintiff Kirk P. Whanger solely as a spectator throughout said independent medical examination; said independent medical examination shall pertain to plaintiff Kirk P. Whanger's alleged heart condition and related alleged injuries; that if said independent medical examination is scheduled outside of Baraboo, defendants shall pay the sum of $25.00 to plaintiff Kirk P. Whanger as and for compensation for lost time, travel expense and meals; that plaintiff Kirk P. Whanger shall execute any required medical authorization for release of independent medical examination information."
This order was drafted, prepared and proposed by the plaintiffs' attorney, Mr. Conway, but it states upon the face of the document that it was upon the motion of the defendants.
On January 21st, Hemming sent Judge LUEBKE a letter objecting to Conway's presence at the examination. Hemming's letter stated that he believed that Dr. Allin would not proceed with an examination if Conway was present. Further, that this is an independent medical examination, and the attorney's presence would impede and inhibit a full and thorough examination. This is the first time the record indicates any reluctance by Dr. Allin who eventually signed an affidavit on March 9th stating the examination would not be conducted if plaintiff's counsel were to be present.
On February 4th, when the order was sent out, Judge LUEBKE accompanied it with a letter stating that Conway would be there only as a spectator, and that he must not interfere in any way with Dr. Allin's examining procedures. On February 14th, defendants filed a notice of appeal in this court, appealing from only that part of the order which allows plaintiffs' counsel to be present at the independent medical examination. On May 24th, Judge LUEBKE signed a separate and distinct order pursuant to defendants' motion which incorporated Dr. Allin's affidavit as part of the record for this appeal.
Prior to argument in this court the plaintiffs-respondents moved to dismiss the appeal upon the ground that the order appealed from was a non-appealable order. The court denied the motion without prejudice and with leave to reassert the motion at the time of argument.
Sec. 274.33 (3), Stats., provides in part:
"Appealable orders. The following orders when made by the court may be appealed to the supreme court:
". . .
"(3) When an order grants, refuses, continues or modifies a provisional remedy . . . ."
The plaintiffs contend the order is not appealable because (1) although it granted a provisional remedy (the independent medical examination) it was for the benefit of the defendants-appellants and upon their own motion; and (2) the part of the order appealed from (counsel's presence at the examination) is only a procedural direction and does not grant, refuse, continue or modify a provisional remedy as required by sec. 274.33, Stats.
It is true that the defendants-appellants sought the independent medical examination and the order entered and appealed from indicates they were the moving parties. More significantly, it was plaintiffs-respondents' counsel who drafted and submitted the challenged order. The only part of the order that is in dispute is the provision for presence of counsel. This provision was consistently objected to by defendants' counsel. The plaintiffs-respondents inserted the provision in the order solely for their benefit. This portion of the order appealed from was obtained by the plaintiffs for their benefit and to that extent is their order.
The case of Kerkhoff v. American Automobile Ins. Co. (1961), 14 Wis.2d 236, 240, 111 N.W.2d 91, cited by the plaintiffs, must be distinguished. Therein this court dismissed an appeal from a judgment because it was ". . . entirely in plaintiff's favor and was entered upon her own motion." The order here is not entirely in defendants' favor and the disputed part of the order was not upon defendants' motion. The appeal should not be dismissed upon the ground that the order granted an order in favor of the defendants-appellants on their motion under the facts of this case.
This court has consistently held that statutory discovery devices were provisional remedies and therefore an order which grants, refuses, continues or modifies this provisional remedy is appealable.
Blossom v. Ludington (1872), 31 Wis. 283; Bavarian Soccer Club, Inc. v. Pierson (1967), 36 Wis.2d 8, 14, 153 N.W.2d 1; Halldin v. Peterson (1968), 39 Wis.2d 668, 159 N.W.2d 738; Fanshaw v. Medical Protective Asso. (1971), 52 Wis.2d 234, 190 N.W.2d 155.
See sec. 274.33, Stats., supra.
The plaintiffs-appellants contend that the portion of the order appealed from does not grant, refuse, continue or modify a provisional remedy. They argue the provision for the presence of counsel is only a procedural direction and therefore not appealable. In support of their position they cite State ex rel. Finnegan v. Lincoln Dairy Co. (1936), 221 Wis. 15, 17, 265 N.W. 202, which held: ". . . While the whole proceeding for the examination of an adverse party is properly held to be a provisional remedy, determining the procedural steps which may properly be taken when the remedy is invoked in a particular case is not the remedy itself. . . ."
We regard the insertion of the provision for the presence of the plaintiffs' attorney by the plaintiffs' attorney in an order for an independent medical examination to be a modification of the order as originally orally announced by the trial court at the conclusion of the hearing.
No reference at all appears in the record of the hearing as to the presence of counsel during the medical examination nor does the doctor's refusal to conduct the examination. Under the circumstances, the portion of the order appealed from goes beyond mere procedure but is a challenge to the independent nature of the examination. While admittedly a close question, the majority of the court is of the opinion the inserted provision for presence of counsel at the examination is a modification of the provisional remedy and therefore appealable.
The writer of this opinion and Mr. Justice HANLEY would hold this is a matter of procedure, not a modification, and as such not appealable. We do agree, however, that the principal issue is of such importance that it could be reached by an original writ prohibition.
The principal issue before us is whether our medical discovery statute, sec. 269.57(2), gives the trial court the authority and discretion to order the presence of plaintiffs' counsel during the independent medical examination of the plaintiff conducted for the benefit of the defendants.
Sec. 269.57 (2), Stats. 1969, provides in part:
"(2) The court or a presiding judge thereof may, upon due notice and cause shown, in any action brought to recover for personal injuries, order the person claiming damages for such injuries to submit to a physical examination by such physician or physicians as such court or a presiding judge may order and upon such terms as may be just; . . ."
Defendants-appellants and plaintiffs-respondents cite numerous cases from other jurisdictions that have dealt with this problem. The opinions in those cases are not uniform. Upon analysis they are not helpful since most of those decisions dealt with a construction of their own statutes as applied to the particular circumstances of that case. Anno. 64 A.L.R. 2d 497; 23 Am. Jur. 2d, Depositions and Discovery, p. 593, sec. 222.
In Bowing v. Delaware Rayon Co. (1937), 38 Del. 206, 190 A. 567, the court held that the statute does not provide for counsel's presence at such examination, and to allow it would serve no useful purpose, and it would interfere with and unduly prolong the examination. In Pedro v. Glenn (1968), 8 Ariz. App. 332, 335, 446 P.2d 31, the court held, ". . . it was an abuse of discretion to condition the defendant's discovery rights in relation to the requested psychiatric examination by requiring that it be conducted only in the presence of plaintiff's counsel or a court reporter." In Sharff v. Superior Court (1955), 44 Cal.2d 508, 510, 282 P.2d 896, the court held, ". . . Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and . . . [therefore] the plaintiff . . . should be permitted to have the assistance and protection of an attorney during the examination . . . ." In Pemberton v. Bennett (1963), 234 Or. 285, 287, 381 P.2d 705, the court held, ". . . whether or not counsel can insist on being present at a medical examination of his client by a physician other than the treating physician, is a matter largely within the discretion of the trial court." In Simon v. Castille (3d Cir. 1965), 174 So.2d 660, the court held it must be presumed the doctors will conduct their physical examinations properly; however, if good cause is shown, the trial judge in his discretion can order counsel's presence.
This court has never specifically ruled on the matter. Sec. 269.57 (2), Stats., is silent on its face as to the presence of counsel but the language of that statute does state that the court may order the examination ". . . upon such terms as may be just; . . ." In our opinion the word "may" and the phrase "upon such terms as may be just" put this matter within the trial court's discretion. Shier v. Freedman (1970), 49 Wis.2d 41, 181 N.W.2d 400, and Tilsen v. Rubin (1954), 268 Wis. 131, 66 N.W.2d 648, support this proposition. In Shier, this court interpreted sub. (1) of sec. 269.57 as being within the discretionary power of the court to grant or deny discovery. In Tilsen, this court held that the scope of review of the trial court's order under sec. 269.57 (1) is limited to a finding of an abuse of discretion. The court stated, at page 134:
"The language of the statute identifies the order which plaintiff seeks to obtain as one discretionary with the trial court. Accordingly, we should not reverse unless convinced that the court's action constituted a clear abuse of discretion. The statute is a remedial one and must be construed liberally. Worthington P. M. Corp. v. Northwestern Iron Co. (1922), 176 Wis. 35, 186 N.W. 156. The burden of establishing such abuse of discretion is on the appellant. . . ."
Although we have determined that the presence of a personal injury claimant's counsel at an independent medical examination is a matter resting within the sound discretion of the trial court, we believe some guidelines should be set forth for the sound exercise of that discretion.
Independent medical examinations are not adversary proceedings per se but rather investigation and preparation. for trial. Opposing counsel's presence is not necessary and ordinarily he can add nothing to the adequacy of the examination. There may be instances where the character, personality or sophistication of the personal injury claimant are such that his counsel could give him assurance and confidence and assist in communicating so as to be beneficial to the examining physician and provide for a more accurate examination. There also may be instances of hostility between the physician and the claimant, or reluctance or fear on the part of the claimant. In these and other situations where a need or prejudice is established, counsel should be permitted to be present. However, the burden to show need or prejudice should be upon the claimant. If need or prejudice is shown, the court then, in the exercise of its discretion, can order the presence of counsel upon such terms as may be just.
In the case at hand, it does not appear from the record that the trial court had sufficient information before it (other than correspondence by counsel after the hearing) upon which to exercise its discretion.
At the hearing on December 22, 1971, there was no request to have counsel present at the independent medical examination nor any showing of why it should be ordered. Nor was there any opposition to his presence by the defendants until after the order was drawn by plaintiffs' counsel. The affidavit by the doctor stating his objection to counsel's presence was not filed until after the notice of appeal was filed. It can hardly be a basis for challenging the discretion exercised by the court.
We have concluded that part of the order of February 4, 1972, providing for the presence of counsel at the independent medical examination, should be reversed and the matter' remanded to the trial court with the direction to reschedule a hearing upon this limited issue wherein the parties may properly present their respective positions and the court exercise its discretion.
By the Court. — Order reversed and cause remanded further proceedings consistent with this opinion.