Judge: Stephen Morgan, Case: 21AVCV00866, Date: 2022-08-11 Tentative Ruling
Case Number: 21AVCV00866 Hearing Date: August 11, 2022 Dept: A14
Background
This is an insurance coverage proceeding regarding underinsured provisions of the insurance policy. The action is proceeding by way of binding arbitration pursuant to the insurance policy provisions.
On October 28, 2021, Petitioner John Blondeel-Timmerman (“Petitioner”) filed his petition.
On March 02, 2022, Respondent West American Insurance Company, erroneously named as Liberty Mutual Insurance, identified as its insured IBEW LOCAL #18 LA-DWP Joint Safety Institute (“Respondent”), filed its Response.
On July 15, 2022, Respondent filed this Motion to Compel to Compel Petitioner to Complete His Physical Medical Examination and Verbally Confirm Surgery(ies) to Areas of Complaint (“Motion to Compel”).
On July 29, 2022, Petitioner filed his Conditional Non-Opposition.
On August 05, 2022, Respondent filed its Reply to the Conditional Non-Opposition.
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Analysis
Standard for Protective Order under Cal. Code Civ. Proc. § 2032.510(e) – Cal. Code Civ. Proc. § 2032.220 provides the following statutory guidelines for a physical examination of a plaintiff:
(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:
(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.
(2) The examination is conducted at a location within 75 miles of the residence of the examinee.
(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.
(c) A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination.
(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.
(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.
“The attorney for the examinee or for a party producing the examinee, or that attorney’s representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.” (Cal. Code Civ. Proc. § 2032.510(a).) Under Cal. Code Civ. Proc. § 2032.510, the guidelines for an observer are laid out:
(b) The observer under subdivision (a) may monitor the examination, but shall not participate in or disrupt it.
(c) If an attorney’s representative is to serve as the observer, the representative shall be authorized to so act by a writing subscribed by the attorney which identifies the representative.
(d) If in the judgment of the observer the examiner becomes abusive to the examinee or undertakes to engage in unauthorized diagnostic tests and procedures, the observer may suspend it to enable the party being examined or producing the examinee to make a motion for a protective order.
(e) If the observer begins to participate in or disrupt the examination, the person conducting the physical examination may suspend the examination to enable the party at whose instance it is being conducted to move for a protective order.
(Id. at (b)-(e).)
The basic statutory authorities for seeking a protective order are CCP §§2017.020(a) and 2019.030(a)–(b), which apply to all discovery methods:
The court must “limit the scope of discovery if it determines that the burden, expense, or intrusiveness of the discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Cal. Code Civ. Proc. § 2017.020(a).)
The court must restrict the frequency or the extent of use
of a discovery method if it finds that: (1) the discovery sought is
unreasonably cumulative or duplicative or is obtainable from some other source
that is more convenient, less burdensome, or less expensive; or (2) the
selected discovery method is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy, and the importance of
the issues at stake in the litigation. (Cal. Code Civ. Proc. § 2019.030.)
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Discussion
Application – Respondent presents the following occurred during the physical examination of Petitioner:
On March 14, 2022, West American served petitioner with a Notice of Independent Medical Examination (“IME”), setting the examination of the petitioner by orthopedic surgeon, Dr. Nitin Bhatia on May 6, 2022. (Decl. Angela Martin ¶ 9, Exh. B.)
Mr. Blondeel-Timmerman responded to the notice with a limited objection confirming that petitioner’s attorney and/or representative would be present; limiting the examination to the areas of petitioner’s body that he has complained about, amongst other proposed limitations. (Id., ¶ 10, Exh. C.) Defendant presents Petitioner’s objections: “Petitioner recognizes the examiner’s need to obtain relevant medical history and will answer any reasonable relevant medical history questions posed by the examiner. Petitioner will not provide a written medical history. Other than questions seeking reasonable, relevant medical history, all other medical history questions will be objected to as invading Petitioner’s right of privacy, being impermissibly overbroad, oppressive, burdensome and irrelevant to the subject matter of the action.” (Ibid.)
The examination began on May 06, 2022 as scheduled. (Id., ¶ 10; Decl. Nitin Bhatia.)
Dr. Nitin Bhatia (“Dr. Bhatia”) began the examination by asking questions pertaining to Petitioner’s areas of injury before the physical examination began to identify what was to be examined, learn Mr. Petitoner’s then-current complaints, and basic information pertaining to the mechanics of the underlying accident. (Decl. Dr. Bhatia ¶ 6; Exh. A.)
Just prior to the physical portion of the examination, Dr. Bhatia asked Mr. Blondeel-Timmerman if he had had any surgery to the related body parts prior to the subject incident. (Id., ¶ 6; Exh. A.)
The attorney representative, Claudia Reniff, RN, instructed Petitioner not to answer this question. (Ibid.)
Dr. Bhatia explained that to perform an appropriate and safe physical examination, he needed to know what body parts were involved and whether they had ay post-surgical issues that may make the examination unsafe. (Id., ¶ 6-7, Exh. A.)
The attorney representative then contacted petitioner’s counsel to confer. (Id., ¶ 7.)
It was during this time that Dr. Bhatia’s assistant Steve Miller (“Miller”) contacted respondent’s counsel to inform her that Ptitioner was not answering questions. (Decl. Angela Martin ¶ 11.)
When respondent’s counsel asked to speak with the attorney representative, Miller indicated that the representative had returned to the room. (Ibid.)
Upon Reniff’s return, Reniff informed Dr. Bhatia that Petitioner would not provide any information regarding any previous surgeries. (Decl. Dr. Bhatia ¶ 8; Exh. A.)
Due to concerns for Petitioner’s safety and to avoid any injuries during the examination, Dr. Bhatia could not complete the examination without petitioner’s confirmation or denial of any prior surgeries to the affected areas. (Id., ¶ 8; Exh. A.)
Respondent argues that good cause exists to issue a protective order to compel the completion of the IME and verbal confirmation of whether any areas of the Complaint were subject to any prior surgery. Specifically, Respondent highlights Petitioner’s limited objections and argues that there is no justification for Petitioner’s refusal to “answer any reasonable relevant medical history questions posed by the examiner.” (Exh. C.) Respondent presents that (1) whether claimant has ever had any surgery to his back, shoulder and hip, the areas that he claims were injured as a result of this accident, is “relevant medical history” that should be provided and (2) good cause to complete the examination exists in this case because the current condition of Petitioner’s physical condition is relevant to the subject matter of the case and there is a lack of means for obtaining the information elsewhere (citing Vinson v. Sup. Ct. (Peralta Comm. College Dist.) (1987) 43 Cal.3d 833, 840.)
Article I, section 1 of the California Constitution provides that all people have certain inalienable rights, and among these are “pursuing and obtaining safety, happiness, and privacy.” Numerous reported decisions have recognized that a patient has a privacy interest in a doctor's medical records pertaining to the patient's physical or mental condition. However, the right of privacy is not absolute. “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.)
Here, the Complaint in this action is a petition establishing court jurisdiction over matters related to the case pending in arbitration. Petitioner’s chief complaints with regard to his bodily injuries are not alleged. The Court takes notice of the Complaint filed in 19AVCV00322, an lawsuit related to this instant action, under it’s the authority vested in it by Cal. Evid. Code § 452(d). (See Cal. Evid. Code § 452(d) [judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”].) The Complaint in 19AVCV00322 alleges “severe injuries and damage to plaintiff, his person and property” (Complaint 19AVCV00322, General Negligence Cause of Action) and “injuries” (Id., Negligence Per Se Cause of Action). Exhibit A, provided by Dr. Bhatia, lists treatment rendered after the motor vehicle incident that forms the basis of this cause of action. In it, it states that Petitioner received the following:
Physical therapy for his neck, low back, bilateral shoulders, bilateral arms, bilateral hips and bilateral legs; and
Injections to his cervical spine, lumbar spine and hips; and
He continues to see doctors for injections and ablation.
Based on the representations of the parties, it appears that at issue are Petitioner’s neck, back, arms, hips, and legs.
Such information is directly relevant to this instant action and Petitioner has placed them in controversy.
Accordingly, the Motion is GRANTED.
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Conditional Non-Opposition and Reply
Petitioner states that he agrees to appear at the August 19, 2022 IME, providing that the following limitations will occur:
The examination will consist of an orthopedic physical examination; and
Limited questioning seeking verbal confirmation of any surgery(ies) petitioner has had to areas of his complaint so that the examination may proceed safely.
Respondent argues that the Conditional Non-Opposition does not provide any substantive response to responding party’s Motion to Compel and, instead, has agreed to (1) proceed with the orthopedic examination, and (2) verbally respond to Dr. Bhatia’s questions as to whether the areas of complaint to be examined had ever been subject to surgery. As such, Respondent requests the court enter an order:
1) Compelling petitioner John Blondeel-Timmerman to appear on August 19, 2022, at 9:00 a.m. at 555 E. Ocean Blvd., Ste 500 in Long Beach, California to complete his physical examination by orthopedic surgeon Nitin Bhatia, MD, pursuant to the terms delineated in the Amended Notice of Physical Examination attached to the moving papers as Exhibit F; and
(2) At the August 19, 2022, examination, petitioner John Blondeel-Timmerman shall answer “yes” or “no” when asked if he has had any surgery to the affected areas of his body, which were previously identified as his head, neck, shoulder, lower back, and left hip.
Despite the Non-Opposition, the Court believes that the broad language of “Limited questioning seeking verbal confirmation of any surgery(ies) petitioner has had to areas of his complaint so that the examination may proceed safely[]” may lead to objections at the IME. Any surgery to the related body parts prior to the subject incident is directly relevant to the action. Petitioner must answer questions related to surgeries to his neck, back, arms, and hips. This includes whether the surgery occurred prior to the incident.
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Conclusion
Respondent Liberty Mutual Insurance, identified as its insured IBEW LOCAL #18 LA-DWP Joint Safety Institute’s Motion for Protective Order to Compel John Petitioner Blondeel-Timmerman to Complete his Physical Medical Examination and Verbally Confirm Surgery(ies) to areas of the Complaint is GRANTED.
Petitioner John Blondeel-Timmerman is ordered to appear on August 19, 2022, at 9:00
a.m. at 555 E. Ocean Blvd., Ste 500 in Long Beach, California to complete his physical
examination by orthopedic surgeon Nitin Bhatia, MD, pursuant to the terms delineated in
the Amended Notice of Physical Examination.
Petitioner John Blondeel-Timmerman must answer questions related to surgeries to his neck, back, arms, and hips, including whether the surgery occurred prior to the incident.