May 16, 1968. Dissenting Opinion May 17, 1968. Rehearing Denied May 23, 1968. Writ Refused June 7, 1968.
APPEAL FROM NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, GUY E. HUMPHRIES, JR., J.
Stafford Pitts, by Grove Stafford, Jr., Alexandria, for defendants-relators.
Neblett, Fuhrer Hunter, by Robert B. Neblett, Jr., Alexandria, for plaintiff-respondent.
We granted alternative writs in this case ordering the district judge to grant a request by defendant that plaintiff submit to a physical examination; or else that either the respondent judge or plaintiff-respondent show cause why the request for a physical examination should not be granted. Pursuant to these alternative writs, the plaintiff-respondent has filed briefs in this court and the matter has been heard on oral argument and briefs by plaintiff and defendant.
After careful consideration, we have decided that the written reasons for judgment by the trial judge correctly state the facts and the law. We adopt as our own the following portion of the trial judge's opinion:
"This matter comes on rule filed by the defendant to require the plaintiff to submit to a medical examination by Dr. Daniel M. Kingsley an orthopedic surgeon of Alexandria, Louisiana. (The naming of the doctor to make the examination is irrelevant).
"The plaintiff was injured in an accident in which a vehicle owned by the defendant Continental Southern Lines, Inc. was involved. At the time of the accident the plaintiff complained of hurting and Mr. Peach, the Claims Manager for Continental Southern Lines, Inc. instructed the plaintiff to report to the Physicians and Surgeons Clinic. Mr. Peach stated that he instructed the plaintiff to report there for first-aid and examination and that the defendant would pay for the doctor. The plaintiff testified that Mr. Peach told him to go to Dr. Hardy and that the bus company would pay the doctor bill.
"The plaintiff went to Dr. Hardy at the P S Clinic and was treated by Dr. Hardy for a year. Dr. Hardy never rendered a bill to the plaintiff. The medical reports of Dr. Hardy and the bill of Dr. Hardy were rendered to the defendant. Dr. Hardy referred the plaintiff to Dr. Fred C. Boykin, a neurosurgeon practicing in Shreveport, Louisiana.
"Dr. Boykin performed a mylogram and reported that it was positive for a ruptured cervical disc at the C5-C6 interspace bilaterally. This finding of Dr. Boykin was made in December of 1967. At the mylogram a radiologist was present.
"Other than the three doctors mentioned above the plaintiff was seen by a doctor in Atlanta because he was experiencing some headaches. No report of this doctor has been received.
"From the pre-trial conference which I have already held in this case and from the questions during the hearing of this matter and the arguments of counsel, it is an evident fact that both Dr. Hardy and Dr. Boykin rendered reports of their examinations to the defendant.
"The defendant contends that Dr. Hardy was their doctor for the initial examination but not subsequent thereto. They also contend that Dr. Boykin is not their doctor. They admit that Dr. Boykin is not the plaintiff's doctor. Counsel for the defendant stated that Dr. Boykin was not anyone's doctor.
"It can be fairly stated from all of the evidence in the case that Dr. Hardy examined the plaintiff for the benefit of the defendant and if we are to place Dr. Boykin on either side he would have to be placed on the side of the defendant. However, it is not necessary to place Dr. Boykin on either side as he can remain neutral insofar as the law is concerned.
"Code of Civil Procedure Article 1493 provides:
" 'Art. 1493. Physical and mental examination of parties
In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending or in which the judgment was originally rendered may order him to submit to a physical or mental examination by a physician, except as otherwise provided by law. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other 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.' "
"It is noticed that this article leaves great discretion in the trial judge in ordering an examination to take place. However some limitations are placed on this discretion by the article as well as by the cases decided thereunder. The article states that the order can issue only upon a motion for a good cause. It would not appear that the defendant has shown good cause because they have the benefit of the medical report of Dr. Hardy, a physician of their own choosing, and they have the benefit of medical report of Dr. Boykin and the radiologist that assisted Dr. Boykin, doctors that can be classified as neutral or the defendant's doctors. The defendants are fully aware of the plaintiff's physical condition.
"This is all that a defendant is entitled to have — knowledge. The defendant is not entitled to have examinations made in order to search for a more favorable report to confuse the medical aspect of a case. They are entitled to know clearly but not to muddy.
"It should be observed that the examination sought to be made by the defendant is an orthopedic examination. The defendant complained that the case took a decided turn when the neuro-surgeon reported that the plaintiff had sustained a ruptured cervical disc. I do not consider this to be a change of the medical situation but a resolution of a previous fluid situation. Even if it be a change the defendant should not be seeking an examination by an orthopedic surgeon but should be seeking an examination by a neuro-surgeon. Apparently their choice of an orthopedic surgeon over a neuro-surgeon is the fear that Dr. Boykin would be classified as their doctor.
"The Court feels that its decision in this matter is the only course of action that can be taken under the jurisprudence.
"A case in point is Woods v. Grain Dealers Mutual Insurance Company, [La. App.] 159 So.2d 410 (2nd Cir. 1964). The Court held that the defendant was not entitled to an orthopedic examination by a second orthopedic surgeon where the defendant had the plaintiff examined by one orthopedic surgeon.
"This right of the defendant was well discussed in Lindsey v. Escude, [La. App.] 179 So.2d 505 (3rd Cir. 1965). In the reporter immediately following the Escude decision is Abshire v. Hartford Accident and Indemnity Company, [La. App.] 179 So.2d 508, (3rd Cir. 1965). In the latter case the court distinguished the law as it applied to workmen's compensation from that of tort cases.
"In the Escude case the trial judge had signed an ex parte order for the plaintiff to submit to an examination by the defendant's doctor. The Court of Appeal held that this was without authority. It held that while the court may order an examination it could not be by ex parte order but only after notice to the party. On this phase of the dispute the court stated:
" 'The reasons for this are clear. An order for a medical examination is not granted as of right; there must be a showing of good cause, and the party to be examined should be able to have the examination made at a time and place without undue inconvenience to himself, as well as to oppose examinations as unnecessary, painful, or hazardous. 2A Barron Holtzoff, cited above, Section 822'.
"Later in the decision the court went into the history of medical examinations at the request of the adverse party. Since it is of interest here it ought to be quoted in full.
" 'Moreover, a compulsory examination of an individual involves a sensitive question touching closely upon the constitutionally protected sanctity of the person.
" 'Prior to the federal rules, for considerations expressly based upon this age-old concept of the law of free men, it was settled doctrine that in federal proceedings an individual's person could not be examined against his will. See Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), as well as succeeding jurisprudence; cf. also Louisiana cases such as Kennedy v. New Orleans Ry. Light Co., 142 La. 879, 77 So. 777. Even the source federal rule, 35(a), was barely held valid by the United States Supreme Court in Sibbach v. Wilson Co., 312 U.S. 1, 655, 61 S.Ct. 422, 85 L.Ed. 479 (1941), with the dissenting four Justices pointing out the ancient roots in our law of "the inviolability of a person:" of "the liberties of the subject", of the old English Law, 61 S.Ct. 428. In its most recent expression on the subject, the United States Supreme Court has pointed out that this discovery device is the most limited of all, that the requirement of good cause is serious and is not met by pro forma allegations, and that a court should exercise discriminating application before ordering such a medical examination. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).' "
"For the above and foregoing reasons the rule nisi is dismissed."
A motion for a physical examination under LSA-C.C.P. Article 1493 is addressed to the sound discretion of the trial judge. As is shown by his written opinion quoted above, the trial judge in this case has given very logical reasons for his decision. We think he has correctly applied the statutory law and jurisprudence. Certainly it cannot be said that he abused his discretion.
Out of an abundance of precaution we wish to make it clear that our decision herein does not restrict the trial judge in his consideration of any further requests for physical examinations which may be made in this case. Of course, each request must be determined according to its own facts and circumstances.
For the reasons assigned, the writs issued in this case are recalled and set aside and this matter is remanded to the district court for further proceedings in accordance with law.
All costs incident to these writs are assessed against the defendant relator.
HOOD, J., dissents and assigns written reasons.
SAVOY, J., dissents for the reasons assigned by HOOD, J.
I am unable to agree with the majority in the conclusions which were reached in this case.
Plaintiff was injured on December 13, 1966. Shortly after the injury was sustained defendant's claim manager sent him to the Physicians and Surgeons Clinic for examination and first aid treatment. Upon reporting to that clinic he was examined and treated by Dr. Humphrey Hardy, a general practitioner, and he has remained under Dr. Hardy's treatment since that time.
This suit was instituted on November 9, 1967, or about 11 months after the accident occurred. In plaintiff's original petition he alleged that he sustained a "cervical strain" and "other injuries to the back, neck and other portions of the body," and for these injuries he demanded damages in the sum of $38,900.00. Defendant filed an answer to the original petition on November 17, 1967.
A myelogram was performed by Dr. Fred C. Boykin, a neurosurgeon, on December 29, 1967. About two weeks later plaintiff filed an amended and supplemental petition, alleging that in addition to the injuries already specified, he also sustained injuries consisting of "ruptured intervertebral discs," and he increased his demands to $88,000.00. On February 21, 1968, plaintiff filed a second amended and supplemental petition, demanding damages in the sum of $108,000.00. Defendant filed answers to both of these amended petitions.
A pretrial conference was held on March 25, 1968, and in that conference the case was scheduled for trial on June 24, 1968. It also was noted that at the trial plaintiff intended to introduce the following exhibits:
"* * * X-rays taken of the plaintiff, a chart or photograph of the intersection, the medical bill of Dr. Boykin, the radiologist bill, the bill from Snell's Limbs and Braces, the bill from the P S Clinic, the bill from Dr. Higgenbottom, the hospital bill and a bill from Dr. Hardy. Also to be introduced is the sample case used by the plaintiff in his business as a cookware salesman, and the cervical neck collar worn by the plaintiff."
The majority has held that "Dr. Hardy examined the plaintiff for the benefit of the defendant." I agree that the initial examination made by Dr. Hardy was at defendant's request and for its benefit, but I do not think it can fairly be said that any subsequent examination made or treatment administered by Dr. Hardy was for the benefit of defendant. If we should assume, however, that all of the subsequent examinations made by Dr. Hardy were for defendant's benefit, an assumption which is more favorable to plaintiff than the facts found by the majority, that should not preclude the defendant from having plaintiff examined at this time by a specialist in the field which embraces the injury which plaintiff allegedly received.
The majority found that Dr. Boykin, the neurosurgeon who performed the myelogram, was "neutral." I think the record and the oral arguments of counsel show clearly that the examination made and myelogram performed by Dr. Boykin were for the benefit of the plaintiff. It is true that Dr. Hardy referred plaintiff to Dr. Boykin on December 20, 1967. A few days thereafter, however, defendant was contacted, probably by someone at the hospital, and was asked if it would authorize the performance of a myelogram on plaintiff and would pay for it. Defendant refused to do either. Plaintiff's counsel was then contacted and he authorized the performance of the myelogram. Dr. Boykin's report was submitted to plaintiff's counsel, who thereupon sent a copy of it to defendant. Before the myelogram was performed plaintiff claimed medical expenses of $400.00. After it was performed he increased his demand for medical expenses to $8,000.00, and among the documents which he expects to introduce at the trial are the bill of Dr. Boykin, the bill of the radiologist who assisted him in performing the myelogram and the hospital bill. These facts indicate to me that Dr. Boykin examined plaintiff solely at plaintiff's request and for his benefit.
Assuming, however, that Dr. Boykin was a "neutral" doctor, as found by the trial judge and the majority, that still should not preclude defendant from having plaintiff examined by an orthopedic surgeon. Up to the present time defendant has never been permitted to have plaintiff examined by a specialist of any kind, and as far as the record shows plaintiff has never been examined by an orthopedic surgeon. There was some speculation during the oral argument that Dr. Higgenbottom, who examined and treated plaintiff in Alabama, was an orthopedic surgeon. But defendant has never received a report of that examination and thus has received no benefit or information from it.
The majority has held that "defendant should not be seeking an examination by an orthopedic surgeon but should be seeking an examination by a neurosurgeon." And plaintiff argues that a "ruptured cervical disc" falls exclusively within the specialty of a neurosurgeon and it is not included in the field of orthopedics. I find nothing in the record which tends to support such a conclusion, and the research which I have been able to do on the subject convinces me that an injury consisting of a ruptured intervertebral disc does fall within the specialty of an orthopedic surgeon.
In Schmidt's Attorneys' Dictionary of Medicine, for instance, I find the following definitions:
" Neurosurgery: The branch of surgery devoted to work on the brain and other parts of the nervous system."
" Orthopedics: The branch of surgery dealing with bones, joints, and related structures. It is concerned with the preservation and, if necessary, restoration of the functions of the skeleton in the living body. It treats the diseases and deformities of the parts of the body concerned with motion, i. e., the bones, joints, muscles, fasciae, etc. Orthopedics relies on manipulation and mechanical devices as well as on surgery."
In Blakiston's New Gould Medical Dictionary, the following definitions are found:
" Neurosurgeon: One who specializes in surgery of the brain and the nervous system."
" Neurosurgery: Surgery of the nervous system."
" Orthopedics: That branch of surgery concerned with corrective treatment of deformities, diseases and ailments of the locomotor apparatus, especially those affecting limbs, bones, muscles, joints, and fasciae, whether by apparatus, manipulation, or open operation. Formerly devoted to the correction and treatment of deformities in children."
In Corpus Juris Secundum these terms are described as follows:
" Neurology is that branch of science which treats of the nervous system; that branch of medical science which is particularly concerned with diseases of the nervous system. It treats essentially of the brain and comprehends those diseases involving actual structural changes of the nervous system." (70 C.J.S., Physicians and Surgeons, Sec. 1, p. 809.)
" Orthopedist. One who practices orthopedics; a surgeon engaged in that branch of medicine which deals with the correction of deformities and chronic diseases of the joints and spine." (70 C.J.S., Physicians and Surgeons, Sec. 1, p. 812.)
These definitions indicate, I think, that the diagnosis and treatment of an injury consisting of a ruptured intervertebral disc falls more appropriately within the specialty of an orthopedist than that of a neurosurgeon. Certainly, however, there is enough merit to defendant's assertion that this alleged injury can or may fall within the field of orthopedics to entitle it to have plaintiff examined by an orthopedic surgeon.
But even if we assume that a "ruptured intervertebral disc" does not fall within the specialty of the orthopedic surgeon, an assumption with which I do not agree, I think my colleagues have overlooked the fact that in addition to a ruptured disc, plaintiff also alleges that he has sustained other injuries consisting of a "cervical sprain" and "other injuries to the back, neck and other parts of the body." I do not believe it can be argued logically that none of these injuries could conceivably come within the specialty of an orthopedic surgeon.
In holding that defendant is not entitled to have plaintiff examined by a specialist in the field of orthopedics, the majority relies on the cases of Lindsey v. Escude, 179 So.2d 505 (La.App. 3d Cir. 1965); Abshire v. Hartford Accident and Indemnity Company, 179 So.2d 508 (La.App. 3d Cir. 1965); and Woods v. Grain Dealers Mutual Insurance Company, 159 So.2d 410 (La.App. 2d Cir. 1964).
In my opinion, none of these cases is applicable here. The only issue presented in the Escude and Abshire cases was whether the trial judge, by ex parte order and without a contradictory hearing, could require a plaintiff to submit to a physical examination. A contradictory hearing was held in the instant suit, so no such issue is before us here.
In the Woods case, supra, each of the two plaintiffs alleged that he had sustained a "cervical or neck strain, a whiplash type injury," that being substantially the same type injury which plaintiff in the instant suit alleges he sustained. In the Woods case each of the plaintiffs had already been examined by two orthopedic surgeons, one of whom had been selected by plaintiffs and the other by defendant. Defendant had been furnished with copies of medical reports from all doctors. Defendant then attempted to compel plaintiff to submit to another examination by a third orthopedic surgeon. Our brothers of the Second Circuit Court of Appeal held, correctly I think, that in view of the previous examinations made by other orthopedists the trial court had not abused its discretion in refusing to compel plaintiff to submit to another examination by a third specialist of the same type. In the instant suit, of course, there has been no other examination by an orthopedic surgeon.
In the Woods case, the appellate court quoted the following language which was used by our Supreme Court in the case of Kennedy v. New Orleans Railway Light Company, 142 La. 879, 77 So. 777 (1918):
"We find no fault with the ruling of the trial judge to the effect that he was without authority to require plaintiff to permit an examination of her person; but, on the other hand, we do not see how the jury and the judge could reach a legal verdict and judgment against the defendant upon an ex parte version of physical injuries, of the nature and character of which plaintiff permitted only the witnesses selected by herself to become informed; for, if defendants in such cases can be condemned upon that basis, they will always be at the mercy of the plaintiffs, who have only to complain of injuries not visible outside of their clothing, produce themselves and their own selected witnesses to testify to them, and sit tight, with no fear of possible contradiction. Such a proceeding, however, fails to furnish the principal element required in due process of law, to wit, a hearing, and ordinarily would be dismissed, since a court cannot well place a value upon ex parte testimony."
In Ishler v. Cook, 299 F.2d 507 (C.A. 7th, 1962), the court said:
"The Court may order more than one physical examination of a plaintiff in an action, based on personal injury to obtain the full truth concerning the matter in controversy. City of Valparaiso v. Kinney, 1921, 75 Ind. App. 660, 664-665, 131 N.E. 237, 238. Here plaintiff's doctor had testified to a change in the plaintiff's physical condition which had occurred since the examination made by the defendant's doctor."
In Marshall v. Peters, 31 F.R.D. 238 (Ohio, 1962), the court said:
"A reading of Rule 35(a) does not indicate an intent to establish a single examination limitation, and where alleged injuries fall into two entirely separate areas of medical specialization, examinations by practitioners in such fields are held to be authorized under the Rule."
And, in Barron and Holtzoff, Federal Practice and Procedure, the following observation is made:
"A state court, construing a rule similar to the federal rule, has refused to order examination by more than one physician, but such a limitation is wholly inconsistent with the realities of modern medical practice. Where specialists from various branches of medicine are required, there is nothing in the rule to prevent the court from ordering examination by all of them." (Barron and Holtzoff, Federal Practice and Procedure, Volume 2A, Section 822, page 483.)
I agree that the defendant must show good cause for requiring the plaintiff to submit to another physical examination. Also, I think the examination requested must be reasonable and plaintiff should not be subjected to harassment. In the instant suit, however, good cause has been shown. Shortly before the request for another examination was made plaintiff amended his petition twice, alleging a much more serious injury and demanding substantially greater sums of money as damages. Defendant has not been permitted to have plaintiff examined by any doctor since this more serious condition allegedly was discovered. In fact, the only physical examination which defendant has ever had made of plaintiff was the one made by Dr. Hardy, a general practitioner, on the day the accident occurred. Some of the injuries alleged by plaintiff certainly fall in the field of orthopedic surgery, and yet plaintiff has never been examined by an orthopedist. It cannot be said that plaintiff is being subjected to harassment by the request for a second examination after a lapse of about 17 months. The examination is to be made in the Parish where plaintiff resides, and the court may specify a time which is convenient to plaintiff. I see nothing unreasonable about requiring such an examination.
I am compelled to disagree with my colleagues in their conclusion that defendant should be denied the right to have plaintiff examined again because such an examination may "confuse the medical aspect" of the case or it may "muddy" the evidence. The purpose of a trial is to seek the truth. If there is conflicting medical evidence in the case I think it should be presented even though it may "confuse the medical aspect" of the case and "muddy" the evidence.
For these reasons, I respectfully dissent from the judgment rendered by the majority.
On Application for Rehearing.
En Banc. Rehearing Denied.
HOOD and SAVOY, JJ., are of the opinion that a rehearing should be granted.