Judge: Mark H. Epstein, Case: 23SMCV00137, Date: 2025-01-24 Tentative Ruling

Case Number: 23SMCV00137    Hearing Date: January 24, 2025    Dept: I

This is an unusual motion.  Plaintiff sues defendant for medical malpractice.  Plaintiff alleges various physical injuries that plaintiff asserts arose from the malpractice.  Defendant conducted a physical examination of plaintiff based on that.  So far, so good.  However, Dr. Franc, who conducted the examination and is a neurologist, concluded that he believed to a reasonable degree of medical probability that the injuries were not caused by the alleged malpractice, but rather by a psychological condition, Somatization Disorder.  Those with such a condition will experience various physical symptoms, but the cause of the symptoms is difficult to diagnose and are actually caused by the psychological condition, not an actual physical etiology.  Defendants therefore seeks to have plaintiff undergo a psychological examination in order to ascertain whether Dr. Franc is correct and they have submitted a supporting declaration from Dr. Thames, who would conduct the examination, who attests that it is necessary.  Recall that Dr. Franc’s specialty is not psychological, thereby leaving Dr. Franc’s opinion open to challenge or attack on the ground that he is not qualified to diagnose Somatization Disorder.  Plaintiff objects to the examination.  Plaintiff emphasizes that he is not alleging psychological damage or injury, and thus has not placed his mental condition at issue.  Plaintiff suggests that these examinations as allowed under section 2032.010 et seq as a tool to get at damages more than things like causation.  Plaintiff has also offered to provide the stipulation set forth in the CCP that would normally bar such an examination.   

This is a tough one.  In the vast majority of cases, psychological examinations are used to determine whether, for example, the claimed emotional distress is beyond the normal sort that would be experienced due to some tort.  But that is not the only use of medical examinations.  A medical examination will often go not only to damages but also to causation.  Nothing in the Code of which the court is aware would preclude an IME to get at liability or causation rather than the quantum of damages.  But psychological IME’s are a bit different.  The Legislature, recognizing that such examinations are more personal and intrusive than a regular physical examination, has placed some additional limits on those sorts of examinations.  For example, a psychological IME cannot be demanded of right, whereas a physical examination can be.  There are different rules as to who can be present.  And it is recognized that such an examination can get into personal issues that simply are not pertinent in a normal physical examination.  For that reason, just because a plaintiff pleads emotional distress does not mean that a psychological examination follows as a matter of course.  The plaintiff must truly put the matter at issue or in controversy.  That can be done by asserting severe or unusual distress, for example.  But even then, the Legislature has set forth a way to short-circuit the examination: the plaintiff can offer a stipulation.

Plainly here the plaintiff is of the view that he has not placed his psychological condition in controversy.  He is claiming no psychological illness or damage.  But the law does not require  that it be plaintiff who places the matter into controversy quite so directly.  If the case (which plaintiff brought) raises the issue, then it is in controversy.  For example, it could well be that a defendant’s condition is in controversy even though it is part of plaintiff’s case in chief.  (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341.)  Here, the defendant is claiming that the physical injuries plaintiff claims are not caused by the alleged malpractice but by a psychological issue.  Not surprisingly, defendant would like an expert to so testify (if that is how the testing comes out) to that effect rather than one who is not a specialist in the field. 

That said, this is not an easy case for the court.  To be blunt, the court was initially inclined to deny the request.  The statutes does not allow for fishing expeditions.  But this is not fishing.  At trial, plaintiff will need to prove causation.  Undoubtedly, plaintiff has an expert who will do that.  But defendant will present contrary evidence that the ailments are from another cause.  It will be up to plaintiff to rebut that to the jury.  Under these unusual circumstances, the court believes defendant is entitled to make its showing.  Plaintiff is, of course, entitled to rebut it with another expert in the same field or otherwise.  Thus, the motion is GRANTED, however the order must be revised to include the limits of the testing as set forth in the Thomas declaration.  If there are other safeguards that plaintiff would like to suggest, the court is open to them. 

The court also notes that because this case is unusual, the court would certainly understand if plaintiff wanted to seek writ review of this order.  To effectuate that end, this order will be STAYED for 30 days.  If, during that time, plaintiff seeks a writ to review the court’s decision, the stay will extend until the writ petition is resolved.  Of course should such a writ be sought, will explain the timing to the appellate court including the upcoming trial so that if the writ is ultimately summarily denied, the denial can be speedy enough so as not to require the court to continue the trial.  (Of course, if the writ is adjudicated on its merits, the trial date likely cannot stand unless it is issued under a Palma procedure.)