In Browne, the defendants were "afforded access to all of the notes and records of the examination of petitioner conducted by the state vocational rehabilitation counselor, augmented by the latter's deposition; that examiner, if called, will be subject to thorough cross-examination by real parties aided by a comparable professional counselor, if desired.Summary of this case from Haniff v. Superior Court of Santa Clara Cnty.
Docket No. 46792.
November 15, 1979.
Boccardo, Lull, Niland Bell, Richard D. Capparella, Stanley A. Ibler, Jr., and Joseph B. Hudson, Jr., for Petitioner.
No appearance for Respondent.
Roper, Majeski, Kohn, Bentley Wagner, Roper, Majeski, Kohn, Bentley, Wagner Kane, Michael J. Brady and Mark G. Bonino for Real Parties in Interest.
We issued our alternative writ of mandate to examine the single question whether a personal injury litigant may be compelled to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician. We conclude that neither statutory nor other authority sanctions the examination ordered by the trial court; accordingly, the petition must be granted.
The facts are undisputed: Petitioner filed a civil damage action against real parties for injuries allegedly sustained as a result of an automobile-motorcycle accident. Petitioner's future wage loss is one of the disputed issues in the pending litigation. Although petitioner voluntarily submitted to a medical examination conducted by a licensed physician selected by real parties, he refused the latter's request "to be examined and tested by Dr. Hal Ulery, a rehabilitation expert" on the grounds that a physical examination by a nonphysician was unauthorized by law. Thereafter real parties filed a written motion for an order pursuant to Code of Civil Procedure section 2032, subdivison (a) compelling petitioner "to submit to an interview and physical examination and/or testing by Dr. Hal Ulery" resulting in an order requiring petitioner to attend the requested "physical examination." Aside from the designated time and place of the examination, the order made no mention of the manner, condition and scope of such examination. The order was stayed pursuant to stipulation pending review by extraordinary writ.
During the same time interval, petitioner supplied real parties with the records relating to his examination by Dr. John Crane, a state-employed vocational rehabilitation counselor; Dr. Crane was subsequently deposed by real parties.
Section 2032 provides in pertinent part: "(a) In an action in which the mental or physical condition or the blood relationship of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician or to produce for such examination his agent or the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."
I. Propriety of Mandamus Review
II. Examination by a Nonphysician
(1) Pacific Tel. Tel. Co., Superior Court2 Cal.3d 161 84 Cal.Rptr. 718465 P.2d 854Roberts Superior Court9 Cal.3d 330 107 Cal.Rptr. 309 508 P.2d 309 Oceanside Union School Dist. Superior Court58 Cal.2d 180 23 Cal.Rptr. 375373 P.2d 439Reuter Superior Court 93 Cal.App.3d 332 155 Cal.Rptr. 525 Morse Municipal Court13 Cal.3d 149 118 Cal.Rptr. 14 529 P.2d 46 Brown Superior Court5 Cal.3d 509 96 Cal.Rptr. 584487 P.2d 1224People Younger County of El Dorado5 Cal.3d 480 96 Cal.Rptr. 553487 P.2d 1193 (2) Greyhound Corp. Superior Court56 Cal.2d 355 15 Cal.Rptr. 90364 P.2d 266Bailey Superior Court19 Cal.3d 970 140 Cal.Rptr. 669 568 P.2d 394 Shepherd Superior Court17 Cal.3d 107550 P.2d 161physician, Edwards Superior Court 16 Cal.3d 905 130 Cal.Rptr. 14549 P.2d 846 Swartzman Superior Court231 Cal.App.2d 195 41 Cal.Rptr. 7212019Bittle Superior Court55 Cal.App.3d 489 127 Cal.Rptr. 574
While the precise factual setting is a novel one, nonetheless we are aided by a number of decisions involving related principles of construction pertaining to discovery statutes. In Bailey v. Superior Court (1977) 19 Cal.3d 970 [ 140 Cal.Rptr. 669, 568 P.2d 394], the court directed that the trial court quash its order authorizing the videotaping of the plaintiff's deposition on the basis that such method of recording and reporting deposition testimony had not been " authorized by the Legislature." ( Id. at p. 977, italics in original; accord Edmiston v. Superior Court (1978) 22 Cal.3d 699 [ 150 Cal.Rptr. 276, 586 P.2d 590] [held: notwithstanding the absence of statutory prohibition, videotaping of plaintiff's medical examination improper since not "affirmatively authorized" by the Legislature]; cf. People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523 [ 143 Cal.Rptr. 609, 574 P.2d 425] [deposition in criminal proceedings restricted to statutory conditions].) Thus, while wide latitude attends the process of pretrial discovery in general ( Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 378), such discretion may not be exercised in a manner conflicting with an express statutory procedure authorizing the method of discovery. (See Bailey v. Superior Court, supra, 19 Cal.3d 970, 978, fn. 11.) To read into the governing statute authority to conduct a physical examination by a nonphysician would subvert the express legislative policy that such physical examinations be conducted only by a physician, by definition a person holding a valid certificate to practice medicine issued by a competent medical authority. (See Bus. Prof. Code, § 4033; Reuter v. Superior Court, supra, 93 Cal.App.3d 332, 338.)
Since the proposed examiner is neither a licensed physician nor surgeon, no affirmative legislative authority exists for the ordered physical examination of petitioner. (Cf. Reuter v. Superior Court, supra, at p. 339 [psychologist not a physician within the meaning of Code Civ. Proc., § 2032].) Nor are we aware of any existing authority validating the challenged examination. Unlike the factual circumstances reflected in Reuter or in Bittle, there is no showing herein that the examination is at the direction and under the supervision of an authorized examining physician. Real Parties' reliance on Shepherd v. Superior Court, supra, 17 Cal.3d 107 is misplaced. We interpret Shepherd as being limited to its precise facts in holding that Code of Civil Procedure section 2031 (authorizing the photographing of "objects or tangible things") does not prohibit the taking of a simple photograph to facilitate further discovery.
We do not decide under what circumstances and conditions such an examination might be properly performed under the supervision of a competent physician. (See generally 27 Cal.Jur.3d, Discovery and Depositions, §§ 54-58.)
Accordingly, we hold that since a vocational rehabilitation counselor is not a licensed physician, no affirmative authority exists under the subject statute, or otherwise, to conduct the proposed physical examination. Since the statute grants no discretion to the trial court as to the person authorized to conduct a physical examination (cf. Edwards v. Superior Court, supra, 16 Cal.3d at p. 913), the order under review constituted an abuse of discretion. Whether such an examination by a qualified vocational rehabilitation counselor should be permitted in the first instance is a matter for the Legislature to determine and not the courts. (See Edmiston v. Superior Court, supra, 22 Cal.3d 699, 704.)
Contrary to real parties' assertion, such an interpretation does not leave them in a fundamentally unfair or unpreferred position at trial. As noted, they have been afforded access to all of the notes and records of the examination of petitioner conducted by the state vocational rehabilitation counselor, augmented by the latter's deposition; that examiner, if called, will be subject to thorough cross-examination by real parties aided by a comparable professional counselor, if desired. (Cf. Edwards v. Superior Court, supra, 16 Cal.3d 905, 912.)
Let a peremptory writ of mandate issue compelling the trial court to set aside and vacate the order challenged herein. Petitioner shall recover his costs; the additional request for attorney's fees is denied.
Elkington, J., and Newsom, J., concurred.
The petition of real parties in interest for a hearing by the Supreme Court was denied January 8, 1980.