Judge Bruce G. Iwasaki, Case Number: 20STCV42493, Date: 2023-04-26 Tentative Ruling

Tentative Ruling: The Court grants Defendants’ motion to compel a second medical examination of Plaintiff

On November 5, 2020, Plaintiff Jessica Kaldem sued Defendants Children’s Hospital Los Angeles and Rene De Jesus Orantes alleging medical malpractice, negligent hiring, and intentional infliction of emotional distress.

Plaintiff alleged that Defendants were negligent when they withdrew her blood during a blood donation. Orantes, who was a phlebotomist at Children’s Hospital, allegedly swept the needle back and forth to show Plaintiff her veins. Orantes also reportedly forced Plaintiff to look at and hold her own drawn blood, despite Plaintiff informing Orantes that she was extremely afraid of blood, to the point of fainting. Plaintiff alleges various injuries, including permanent nerve damage.

On February 24, 2023, Defendants filed this instant motion to compel a second medical examination of Plaintiff. In opposition, Plaintiff contends that there is no good cause for the Court to grant a second exam, In reply, Defendants contend there is good cause.

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).) Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).)

“Nowhere does the Legislature specifically limit the number of available examinations, either mental or physical. The authoritative discovery commentators agree that multiple defense examinations are permitted on the necessary showing of good cause.” (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) A showing of good cause requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) “The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee’s privacy interest by preventing an examination from becoming an annoying fishing expedition.” (Ibid.)

The issue here is whether there is good cause in allowing Defendants to conduct a second medical exam of Plaintiff. The Court finds that Defendants sufficiently meet that burden.

Defendants argue a second medical examination is needed because Plaintiff developed a new medical diagnosis, with new estimated future care costs. Defendants state Plaintiff’s injury morphed from a left ulnar nerve injury to Complex Regional Pain Syndrome (CRPS). Defendants argue that this new development drastically changed the nature and claimed cost of future care since the original defense medical exam. These include monthly consultations with a pain management physician for the rest of her life (at a cost of $237,369.72), as well as Ketamine injections until age 65 (at a cost of $852,254.31), as well as various other equipment and medications. In the event the Court does not grant leave to conduct a second exam, Defendants request that the Court preclude Plaintiffs from commenting on or criticizing Dr. Barnard, the defense specialist who conducted the first exam.

In opposition, Plaintiff contends that there is no good cause to justify a second exam. Plaintiff points to three main issues: (1) there are no new injuries or symptoms, (2) a physical exam is unnecessary to assess Plaintiff’s future care costs, and (3) there is risk of harm to the extent that another exam is physically intrusive and may exacerbate Plaintiff’s symptoms.

Plaintiff contends there is no new diagnosis since October 2020. Plaintiff argues that Defendants cannot claim they are surprised by the CRPS symptomology when they have known about it for 2 and half years. Plaintiff states that Defendants already had an opportunity to examine Plaintiff, where the Defendant’s specialist, Dr. Amos found no signs or symptoms suggestive of complex regional pain syndrome.

Plaintiff also claims that a physical exam is not necessary to assess the future care costs since Plaintiff’s expert was able to provide such a care plan without a physical examination, based on the medical records and an interview with Plaintiff. Plaintiff states that Defendants have access to the same exact information from which to create their own future cost projections. According to Dr. Edinger, Plaintiff’s physician who created the new treatment plan, the treatment for nerve injury and CRPS symptoms is nearly identical.

Further, Plaintiff argues that another examination could exacerbate her symptoms and significantly impede her recovery. Plaintiff states that the first defense examination by Defendant’s specialist resulted in pain and inflammation of her symptoms for multiple weeks. Plaintiff contends that her treating physician has advised against undergoing any EMG/NCS nerve studies as the physical intrusion could “increase her pain long-term” and “at this point it is not worth the risk.” (Deville Decl. ¶ 4.)

Defendants argue that Plaintiff erroneously contend that there has been no change in Plaintiff’s symptoms or treatment since the onsent of injury. Defendants provide a timeline of relevant events, which include:

· On October 18, 2019, Plaintiff was first presented to neurologist Dr. Kim, who assessed “paresthesia in left arm along ulnar distribution … suggestive of mild/irritation/injury to ulnar nerve.” Plaintiff was referred for nerve conduction study.

· On December 12, 2019, Dr. Kim reported “90% improvement” of Plaintiff’s condition. Plaintiff did not get the nerve conduction study he recommended.

· On February 21, 2022, Defendants performed their medical exam by neurologist Dr. Amos.

· On April 25, 2022, Plaintiff presented to Dr. Edinger, a pain management physician who specializes in the treatment of CRPS.

· In August 2022, Plaintiff produced recommendations from Dr. Edinger for Plaintiff’s future care, totaling in excess of $1 million.

Defendants contend that they are simply seeking the opportunity to have an equivalent specialist evaluate Plaintiff and her injuries since Plaintiff changed medical specialists from neurologist to pain management specialist after the defense medical exam was performed. Defendants argue that the new and different recommendations by Dr. Edinger create good cause to allow a second examination. Defendants point to the disparity in treatment given that Plaintiff’s prior neurologist, Dr. Kim reported 90% improvement, and Dr. Edinger’s treatment plan estimates future care costs in excess of $1 million.

Finally, Defendants claim that they do not seek to injure Plaintiff or exacerbate any of her symptoms, stating they can make accomodations to minimize and/or eliminate any such risk. Defendants argue it is patently unfair to deprive them of an opportunity to have a specialist with equivalent training as Plaintiff’s current treating physician.

“Good cause” may be found where plaintiff claims additional injuries, or that his or her condition is worsening; or even simply because of lapse of time (e.g., if it has been 3 or 4 years since the first exam and plaintiff claims continued symptoms, another physical examination before trial may be proper). (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1546.)

The Court discusses the issues presented by the parties. The facts on the record support a finding of good cause.

i. Defendants sufficiently show that Plaintiff has new diagnoses or symptoms.

The Court finds that Defendants meet their burden of showing that Plaintiff has new diagnoses or symptoms that justify a second exam. At the outset of litigation, Plaintiff reported in her discovery responses that she suffered an injury to her left arm as a result of the blood draw, including ulnar nerve palsy, CRPS symptoms, fear of needles, and anxiety/stress. Although Defendants knew of Plaintiff’s CRPS symptoms prior to the defense medical exam, it does not appear that Plaintiff was officially diagnosed with CRPS by Dr. Kim. Neither party provides Plaintiff’s 2019 medical examination report by Dr. Kim, so the Court cannot assess whether CRPS was actually diagnosed. However, Plaintiff fails to rebut Defendants’ argument that Plaintiff’s injury changed from a left ulnar injury to CRPS. There is no evidence showing that a patient exhibiting CRPS symptoms necessarily has a CRPS diagnosis. The proposed examination is aimed at seeking relevant information. Interests in disclosure of evidence upon which an expert can offer an opinion buttresses the Court’s truth-seeking function, and are not outweighed by inconvenience to the Plaintiff.

Furthermore, even if Plaintiff could show that she was originally diagnosed with CRPS, and not just CRPS symptoms, it is alleged that Plaintiff’s injuries have worsened. In 2019, Dr. Kim reported a 90% improvement, but in 2022 Dr. Edinger recommended a new treatment plan. The change in treatment plan indicates a change in Plaintiff’s diagnosis or symptoms, and justifies further examination.

ii. Defendants sufficiently demonstrate a physical exam is necessary to assess future care costs.

There has been what appears to be a significant change regarding the nature and cost of Plaintiff’s future care. Defendants’ evaluation and assessment of Plaintiff’s treatment plan includes a determination of whether Plaintiff actually has CRPS rather than merely CRPS symptoms. This question supports the need for a physical examination, which would allow Defendants to evaluate the scope and necessity of Plaintiff’s proposed treatment and future care costs. These are legitimate objectives that require a further examination.

iii. Plaintiff fails to show that the risk of harm to Plaintiff outweighs Defendants’ need for discovery.

The Court finds that Defendants interest in discovery and adequate preparation and defense of the case outweighs any risk of harm to Plaintiff. Plaintiff’s argument that additional examinations could cause increased pain and injuries is based on a hearsay statement, which the Court will not consider. The statement is made by Dr. Edinger, but submitted in the declaration of Plaintiff’s counsel. Plaintiff’s speculative concerns – which could be raised in opposition to a single examination – are insufficient to justify denying this one.

In light of the foregoing, the Court grants Defendants’ motion to compel a second medical examination.

Department 58