Judge: Theresa M. Traber, Case: 22STCV06327, Date: 2024-06-17 Tentative Ruling

Case Number: 22STCV06327    Hearing Date: June 17, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     June 17, 2024                         TRIAL DATE: March 18, 2025

CASE:                         Robert Montee v. Keck Hospital of USC

CASE NO.:                 22STCV06327           

MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION

MOVING PARTY:               Defendant Keck Hospital of USC

RESPONDING PARTY(S): No response on eCourt as of 6/12/24

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a medical malpractice action that was filed on February 2, 2022. Plaintiff alleges that he suffered an injury to his urethra and bladder from the improper placement of a Foley catheter during a surgical procedure.

Defendant moves to compel a defense medical examination, erroneously called an “independent” medical examination, of the Plaintiff.

TENTATIVE RULING:

            Defendant’s Motion to Compel Compliance with Demand for an Independent (sic) Medical Examination is GRANTED.

            Good cause exists for Defendant to obtain the requested examination of Plaintiff.

            Plaintiff is ordered to attend a physical examination to be conducted at 3:30 PM on July 1, 2024, at the location of Orange County Urological Medical Associates, 23961 Calle de la Magdalena, Ste. 500, Laguna Hills, California 92653; and that the nature and scope of Dr. Spitz’s examination will include those injuries and complaints claimed by plaintiff in this action and will not include any diagnostic test or procedure that is painful, protracted or unduly intrusive. The examination will consist of taking history, present status, physical/clinical examination, cystoscopy and urodynamic study and review of records. Dr. Spitz will interview Plaintiff regarding plaintiff’s current medication, current treating providers, therapies and daily routines.

DISCUSSION:

Defendant moves to compel a defense medical examination of the Plaintiff.

Meet and Confer

           A motion to compel a defense medical examination must be accompanied by a meet and confer declaration showing a reasonable and good faith attempt to informally resolve the issues presented. (Code Civ. Proc. §§ 2016.040; 2032.250(a).)

           The declaration of Anastasia K. Olano in support of the motion states that the parties met and conferred telephonically regarding whether Plaintiff would permit performance of a cystoscopy as part of the examination, but were not able to reach an agreement. (Declaration of Anastasia K. Olano ISO Mot. ¶¶ 5-8.)

“In Controversy” Requirement 

Any party may obtain discovery by means of a medical examination of a party in an action in which the mental condition of that party is “in controversy in the action.” (Code Civ. Proc. § 2032.020(a).) Leave of court is required. (Code Civ. Proc. § 2032.310(a).) 

Here, Plaintiff’s medical condition is directly placed in controversy on the face of the Complaint. (See Complaint ¶¶14-15.) As such, Plaintiff’s continuing medical condition is “in controversy” in this action, and Defendant may conduct a medical examination of Plaintiff, if the other statutory requirements are met. (Code Civ. Proc. § 2032.020(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.) 

Procedural Requirements 

A motion for compliance with a demand for a physical examination without any painful, protracted, or intrusive test or procedure is brought pursuant to Code of Civil Procedure § 2032.250(a). (Code Civ. Proc. §§ 2032.220(a)(1), 2032.250(a).) To the extent that Plaintiff considers the cystoscopy to be “intrusive,” a motion to secure such a physical examination is made under Code of Civil Procedure §2032.310(a).  Such a motion must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination.” (Code Civ. Proc. § 2032.310(b).) The motion must also be accompanied by a meet and confer declaration. (Ibid.) Notice of the motion must be served on the “person to be examined and on all parties who have appeared in the action” (Code Civ. Proc. § 2032.310(c).) 

            Here, the Notice of Motion expressly specifies the place, manner, conditions, scope and nature of the examination, and the specialty of the person performing the examination. Notice was served on Plaintiff and specifies that board-certified urologist will take a medical history, present status, conduct a physical and clinical examination, conduct a cystoscopy and urodynamic study, review Plaintiff’s medical records, and interview him regarding his current medication, treatment providers, therapies, and daily routines. (Notice of Motion p.2:1-7.) The motion does not set forth the time at which the examination would take place. The Separate Statement accompanying this motion when it was filed on January 2, 2024, states that the examination would take place on January 16, 2024 at 3:30 p.m. and continue as long as reasonably required. (Separate Statement p.2:5-6.)

            Finally, a Court-ordered physical examination may only be performed by a licensed physician. (Code Civ. Proc. § 2032.020(b).) Dr. Spitz testifies to his training and licensure as a physician. (Declaration of Aaron Spitz ISO Mot. ¶ 3.)  Given the long delay in ruling on this motion, the Court finds that the motion has substantially complied with the procedural requirements to compel a defense medical examination, notwithstanding the long-passed date for the examination.

Good Cause

A defendant may move to compel a physical examination of a plaintiff upon receipt of a modification or refusal of the demand which the defendant deems unwarranted. (Code Civ. Proc. § 2032.250(a).) A motion for a medical examination is granted “only for good cause shown.” (Code Civ. Proc. § 2032.320(a).) Good cause requires the moving party to “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 good cause “serves as a barrier to excessive and unwarranted intrusions.” (Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 428 [superseded by statute in unrelated part].) If the moving party shows good cause for the examination, the Court’s order must specify the “person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc. § 2032.320(d).)  

Defendant contends that, according to Dr. Spitz, it is necessary to a reasonable medical probability to conduct a cystoscopy to evaluate Plaintiff’s injuries, as this procedure is the best method to visualize the site of the injury and determine its extent. (Spitz Decl. ¶¶ 7-8.) As Plaintiff has not contested this motion, the Court concurs.

CONCLUSION:

            Accordingly, Defendant’s Motion to Compel an Independent Medical Examination is GRANTED.

            Good cause exists for Defendant to obtain the requested examination of Plaintiff.

            Plaintiff is ordered to attend a physical examination to be conducted at 3:30 PM on July 1, 2024, at the location of Orange County Urological Medical Associates, 23961 Calle de la Magdalena, Ste. 500, Laguna Hills, California 92653; and that the nature and scope of Dr. Spitz’s examination will include those injuries and complaints claimed by plaintiff in this action and will not include invasive tests or procedures. The examination will consist of taking history, present status, physical/clinical examination, cystoscopy and urodynamic study and review of records. Dr. Spitz will interview plaintiff regarding plaintiff’s current medication, current treating providers, therapies and daily routines.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  June 17, 2024                         ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.