Plaintiffs Are Not Subjected to Medical Interrogation
Under Code of Civil Procedure section 2031.010, the plaintiff cannot be subjected to an oral history assessment by the defense doctor as part of the “physical examination.”
The Deposition
When it comes to interviewing the client, the defense only gets one shot – the deposition. The defense attorney may argue that your client needs to be asked a few questions by their medical examiner regarding:
- How the injury-causing event unfolded
- The medical and treatment history of the plaintiff
This questioning of the plaintiff simply isn’t authorized by the code. There are other ways the Defense may obtain this information – written discovery, subpoenas, and depositions. However, outside the protection of an attorney, the doctor may not conduct an oral exam of the plaintiff.
Legal Rationale – DPE is not a Deposition
The legal basis behind why the defense examiner may not interview the plaintiff during the Defense Physical Exam (DPE) is that it is not a deposition. The regulations and protections that are in place for a deposition do not apply in the case of a DPE.
The DPE occurs:
- Without an oath
- Without counsel for both sides
- Without a court reporter
- Without procedural safeguards
That’s why allowing a defense doctor to interrogate the plaintiff under the guise of obtaining a “medical history” could be legally untenable.
Statutory Interpretation
According to the statute, only “physical examination” is allowed as part of the DPE. The relevant statute needs to be analyzed by the court, and it must give effect to its plain meaning. Thus, the process should begin by analyzing the language of the statute. Medical history is not a part of the DPE, according to the Code of Civil Procedure section 2032.
Case Law
There is always the potential for abuse of the DPE provisions under the pretext of conducting an ‘independent’ medical exam, and courts have recognized this loophole. In Sharff v. Superior Court (1955), the California Supreme Court delivered a writ of mandate asking the trial court to permit a case of injury to be tried without demanding the plaintiff to go through a medical exam without the presence of their attorney.
According to the court, when a medical professional picked by the defendant carries out a full body examination of the person who is initiating the case (the plaintiff), it’s possible that inappropriate questions may be asked. The plaintiff should not be expected to assess the legal validity of every question at the risk of their health and safety. That’s why the plaintiff should be allowed to have protection and assistance of an attorney during the examination. There is a long history of logic behind this.
Psychological Exams
The physical examinations are different from mental health and psychological examinations. Therefore, the principle behind defense psychological evaluations does not apply to physical exams. That’s why mental health evaluation is not included in a DPE.
Negotiating the DPE
A knowledgeable Sacramento personal injury lawyer (counsel of the plaintiff) should start negotiating reasonable limits of the DPE by ensuring that timely objections are served to the DPE notice. When the plaintiff receives a written demand for a DPE by the defendant, they may decide to submit to the demand in an adjusted manner. It may be objected that the plaintiff will appear on the condition that they give no oral history during the medical exam. Plaintiff should agree to reply to the questions that are relevant to the examination or current symptoms. The DPE doctor should make sure that all the questions are posed in the present tense only.
Here are some of the most common examples from a DPE:
- “What kind of shoes do you wear?”
- “Can you feel when I touch here?”
- “Are you seeing any doctors for this at the moment?”
- “Do you limp at the end of the day?”
These questions mentioned above are considered “fair game.” However, any question related to the plaintiff’s pre-injury activities or past treatments is not fair game at all.
Regarding the DPE
It’s vital that the plaintiff is accompanied by their Sacramento personal injury lawyer on their way to DPE. That’s the only foolproof way the plaintiff can make sure that no oral history is conducted.
Another reason why plaintiff’s counsel must be present is to ensure that the doctor doesn’t question the plaintiff inappropriately during the examination. According to the Supreme Court of California, a plaintiff deserves to be assisted and protected during the examination to avoid improper interrogation.
At the outset of the DPE, plaintiff’s counsel should record the examination with the audio recorder on. They should present all the agreements and objections previously reached with the defense counsel. Also, make it clear that the plaintiff appears for the examination subject to those conditions only. Ask the examiner if they received and reviewed those materials before starting the examination. Once the examiner responds with an affirmative, ask them to proceed with the physical exam.
If at any point during the examination, the examiner seems to cross the line, don’t hesitate to intervene. Do not bother giving advice or orders to the examiner. Simply, instruct the plaintiff (your client) to not answer when the examiner poses an improper question.
Sacramento Personal Injury Lawyers
I’m Ed Smith, a Sacramento personal injury lawyer. A plaintiff should not be subjected to a medical interrogation. In addition, the plaintiff should not submit to any other method of discovery that has not been authorized by the code. If this happens to you or a family member, I can offer you my free and friendly advice at (916) 921-6400 or (800) 404-5400.
I’m a member of the Million Dollar Forum and the National Association of Distinguished Counsel.
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