Third-Party Representative to attend and observe DMEs, audio record mental examination and prevent inappropriate DME history

The Code of Civil Procedure for Physical and Mental Examination indicates that the plaintiff attorney may designate a third party representative who 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. Also, see the article below discussing that a mental examination may be audio recorded under Code of Civil Procedure Section 2032.530(a)–“Defense Medical Examinations Are Not Independent.”

As a Defense Medical Examination nurse observer, I’ve found the following articles useful and I have obtained reprint permission for most of these. Please contact me so I may provide you with copies of those articles that I have reprint permission for.

Gelder, Alan Van. “Defense Medical Exams in Brain-Injury Cases.” Advocate Magazine.

Synopsis— “USE MOTION PRACTICE TO STOP DEFENSE EXPERTS FROM ABUSING THE MMPI2 AND OTHER TESTING IN BRAIN-INJURY CASES. When the defense cites to confidentiality and ethics prohibitions to prevent you from seeing the raw data for their defense mental-exam tests, they are shielding the expert’s work from effective and complete cross-examination. When this happens, the defense cannot then use those same tests as a sword against your client. By raising this sword and shield argument during motion practice over the scope of a defense mental exam, you can potentially force the defense to reveal their raw data, withdraw the tests, or get a court order precluding the use of the tests.” Discusses the implications in traumatic brain injury (TBI) cases, and reviews the Minnesota Multi-Phasic Personality Inventory 2 (MMPI2) with its Fake Bake Scale (FBS) and the Response Bias Scale. (RBS) as well as the Green Word Memory Test. (WMT). Key words: trade secret privilege, symptoms, exaggerating, pretending, somatization (somatoform disorder), mental illness, cognitive problems, formulation to objections to the tests. The author writes, “the authors of the MMPI2 on their website acknowledge that testing questions and answers can be produced with a court order” and also, “Under Evidence Code section 721, subdivision (a), an expert may be crossexamined to the same extent as any other witness and, in addition, may be fully cross-examined as to his or her qualifications, the subject to which their expert testimony relates, and the matter upon which their opinion is based and the reasons for their opinion.

Court Decision Referenced in the Article—Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 272. “In Carpenter, the court rejected claims that the written questions and answers were precluded from discovery due to copyright. The court also rejected the argument that the materials could not be produced to plaintiff ’s counsel in a manner that could protect the integrity of the tests. (Id. at 271-274. [Because the ethics question had not been briefed at the lower court level, the court declined to rule on the ethics objections.].)”

Court Decision Referenced in the Article—Los Angeles County Superior Court in Ruffin v. United States Telepacific Corp., 2018 Cal. Super. LEXIS 4028, *7, relying on Carpenter, ordered that the questions and answers be turned over to plaintiff ’s counsel. “Whether Plaintiff ought to receive such written materials is within the discretion of the court. (Carpenter v. Superior Court (2006) 141 Cal. App.4th 249, 272.) “The court believes that, given the spirit of discovery to facilitate the open exchange of information between parties, Plaintiff ought to receive the written materials she requests after the execution and consonance of a protective order. (Ibid.)”

Court Decision Referenced in the Article— In State v. Jones (2004) 358 N.C. 330, 357 “during direct examination, the defendant’s expert testified that he had an ethical responsibility to ensure the MMPI2 materials were not released to untrained, unqualified individuals. On cross-examination, the prosecution specifically went through multiple questions and statements from the MMPI2 that had been presented to the defendant and reviewed the questions/answers with the defense expert. These questions were read aloud to the jury. (Ibid.)”

Court Decision Referenced in the Article—People v. Henriquez (2018) 4 Cal.5th 1, 26.) “Psychologists and psychiatrists are not immune from this rigorous crossexamination.” (Ibid.; People v. Rodriguez (2014) 58 Cal.4th 587.)

Additional Decisions Reference in the Article (great Article, READ IT)-- Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285. Green v. Superior Court of San Joaquin (1963) 220 Cal.App.2d 121. Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 793.) Fox v. Kramer (2000) 22 Cal.4th 531, 541.)

Summer, Scott H.Z. & Lateiner, Jeremy N. “Keeping it Physical—Enforcing the Discovery Act Limitations of Scope of Discovery in Defense Physical Examinations: Oral Examination or History Taking is Not a Proper Component of CCP Section 2032.220 Examinations.” Consumer Attorneys of California Forum.

Synopsis—"Most defense firms send notices out that purport to require an oral examination or oral history-taking. The code does not provide for such a procedure.” The article, recognizing this fact, discusses Response / Objection suggestions. It goes on to review, “Code of Civil Procedure Section 2032.020 sets forth the authority for physical examinations. Throughout Section 2032, the operative term is always “physical examination.” The very first words in the statute, for example, state “[a]ny party may obtain discovery ... by means of a physical ... examination ....” (CCP § 2032.020(a).) The objective of statutory interpretation is to ascertain and effectuate legislative intent. (People v. Flores (2003) 30 Cal.4th 1059, 1063.) In determining intent, you look first to the language of the statute giving effect to its “plain meaning.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209.)—i.e. a Physical Examination is NOT a deposition, etcetera.

Court Decision Referenced in the Article—Sharff v. Superior Court of City and County of San Francisco (1955) 44 Cal.2d 508, “Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril.”

Additional Decision Referenced in the Article— Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 745, “the Third District Court of Appeal recognized a “legitimate concern” in forcing the plaintiff to submit to questioning by the defense mental examiner regarding “the facts and circumstances of the accident itself where [the plaintiff] had done so at least twice previously [at deposition and at a previous interview by his own physician, which is described in the medical records].”

Blumberg, John P. “Defense Medical Examinations are Not Independent.” Consumer Attorneys of Los Angeles Advocate Magazine.

Synopsis—Discusses the nurse observer role. Reviews that plaintiff counsel may designate an attorney representative to attend and observe a DME. “The exam is an adversarial process that you and your client must be prepared for.” “The Rutter Group California Practice Guides on Civil Procedure before Trial and Personal Injury. The most important thing to recognize is that the so-called, "Independent N{medical Examination" is neither independent nor medical. Section 2032 makes reference only to a physical examination, and the word independent is nowhere to be found.” “The defense doctor will try to develop an inconsistent history on liability or a liability history that shows no prima facie liability or shows contributory fault or assumption of risk.”

Court Decision Referenced in the Article—Mercury Casualty Co. v. Superior Court of LA (1986) 179 Cal.App,3d 1027, 1033 1225 Cal.Rptr. 1001, the Court commented that "the physician appointed to conduct a medical examination under Code of Civil Procedure section 2032 is not hired for the purpose of being impartial."

Court Decision Referenced in the Article—Urbank & t. Netuton (1991) 226 Cal,App.3d 1128, rI35 1277 Cal.Rptr. 3541, the Court noted that when a plaintiff submits to such examination, it is in a "strictly adversarial context."

Court Decision Referenced in the Article—Kennedy v. Superior Court (1998) 64 Cal.App.4th 674, 678-679 [75 Cal.Rptr.2d 373]. Pursuant to Code of Civil Procedure sections 2032.610(c) and 2032.630, the Defense waives any protection for work product whenever the plaintiff is examined by the defense doctor and, therefore, the defense examiner can be deposed with regard to his findings and opinions, whether or-not he is designated as an expert witness for trial by defense counsel.

Dolan, Christoper B. “Tactical Expert Containment.” Consumer Attorneys of California Forum. “In today’s litigation, the ‘expert’ has become the staple the bread and water of the defense case. To survive, and win, you must understand the tactical approach to expert witnesses at trial.”

Synopsis— “…with medical experts (Defense Medical Examiners [“DME”]) you need to Establish, at a minimum, that they agree that your client sustained some injury (for the purpose of a directed verdict in an admitted liability case). …” you must have your own expert on critical areas of proof such as liability, causation and damages.” “Preclude a second deposition.” “Tape record any DME (both medical and psychological/psychiatric – this is permitted under case law). It is amazing what doctors leave out of their reports and on the stand. I have Crossexamined doctors who stated that the plaintiff expressed no difficulty or complaint only to have the tape played during trial where the plaintiff is complaining of pain, discomfort and limitation. It is an invaluable tool.” “If you have a pre-existing condition or injury, get the expert to agree that a certain segment of the population is predisposed to injury and that prior injury can make people more susceptible to greater harm from subsequent injury. In essence, get them to agree to the CACI “eggshell plaintiff” instruction. (CACI No. 3927.)” “Ask the doctor if people experience pain differently. Some people have a greater threshold for pain than others.” ““inside the box.” “If the physician starts stating that the client is a malingerer, or advancing secondary gain, get them to admit that these are diagnoses under the DSM IV or DSM IV-R. Have a copy of the DSM criteria for malingerer and ask the doctor to tell you what they are. They cannot. Get them to admit that they are not licensed to do psychology, that they are not practicing as psychologists or psychiatrists and/or that they refer their patients to professionals in psychology/psychiatry if they think that they need such treatment. This demonstrates that they are not licensed in that field and, therefore, lack the Qualifications to provide testimony on those subjects. Have them admit that they did not perform a psychological examination, psycho-social history and/or did not conduct the battery of psychological tests such as the MMPI or MMCI. This shows that they lack a foundation upon which to provide testimony as to a psychological diagnosis.”

Court Decision Referenced in the Article— (Deeter v. Angus (1986) 179 Cal.App.3d 241; C.C.P. § 2031). “A motion in limine should be filed to exclude any documents or materials not produced at the deposition. California Code of Civil Procedure § 2034, subdivision (f)(2)(D) requires that an expert, at the deposition, be familiar with the case and able to provide a “meaningful oral deposition.” (Id.) The trial court can exclude documents or other physical evidence at trial that has not been produced during discovery or that would cause “unfair surprise at trial.” …“Similarly, move to exclude the opinions which are based on the documents that weren’t provided.”

Court Decision Referenced in the Article— (People v. Coleman (1985) 38 Cal.3d 69, 92.) “On direct examination, the expert witness may state the reasons for the opinion, and testify that reports prepared by other experts were a basis for that opinion.

Court Decision Referenced in the Article— (Whitfield v. Roth (1974) 10 Cal.3d 874, 894; see also People v. Reyes (1974) 12 Cal.3d 486, 503.) “An expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by non-testifying experts. “‘The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.”

Good, Ned. “Preparing for the Defense Medical Exam.” Consumer Attorneys of Los Angeles Advocate Magazine. Exploring the real purpose of a defense medical examination.

Synopsis—"Defendants contend the purpose of the defense medical examination is to help evaluate the case so as to be able to make a reasonable settlement offer.  While this may be true in some instances, usually the  purpose of the defense medical examination is to  provide defense counsel with ammunition to destroy  plaintiff’s liability case and/or plaintiff’s damages case  or at least hold down the damages.  The defense doctor will try to develop an inconsistent history on liability or a liability history that shows no prima facie liability or shows contributory negligence or assumption of risk.  Deny causation and develop a history that shows the problem was preexisting, subsequent, and unconnected, or coincidental but not causally related.  Show plaintiff is malingering or not motivated to  get well by not aggressively seeking care and treatment, or not following the care and treatment recommended, or by physical activities that are inconsistent with any serious injury. During the exam, if anything the doctor does or any of plaintiff's movements cause pain, plaintiff should be sure to tell the defense doctor it hurts. Otherwise, the doctor will state all motions were conducted freely and easily without any pain. If the doctor wants to claim plaintiff’s pain was faked, let him say that but at least have him admit plaintiff complained of pain during the exam.

Menzies, Karen B. & Drake, Roger. “Defense Medical Exams (DMEs) Practical Ways to Limit Physical and Mental Examinations.” Consumer Attorneys of California Forum.

Synopsis—" Defense medical exams (“DMEs”) are ostensibly objective discovery tools used to determine what injuries the plaintiff has suffered. But, in practice, DMEs are used for a number of improper reasons: to intimidate your client, to interview your client regarding both liability and damages for impeachment purposes, to get information about medical insurance, to breach the attorney-client privilege when no one is there to object, and the list goes on.

Court Decision Referenced in the Article— Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 274 Cal.Rptr. 516.)  Although not a matter of right, defendants are typically permitted more than one examination of the plaintiff by different specialists in cases that involve multiple types of injuries. In these situations, the different physicians will each want to take the history of the patient unless otherwise limited.  Although examiners may be entitled to take a limited history from the examinee, the examiner may not use the opportunity to cross-examine the plaintiff on liability issues.

Archer, Steven & Luftman, Amanda. “A Practical Guide to Code of Civil Procedure Section 2032: Taking Control of Defense Medical Examinations.” Consumer Attorneys of Los Angeles Advocate Magazine.

Synopsis—"In personal injury cases, defendants usually serve a Demand for Physical  Examination of the plaintiff by a doctor of their choosing.  The right to a physical examination was codified by the California State Legislature in Code of Civil Procedure section 2032.  This article addresses the practical effects of complying with this statute, while simultaneously protecting the rights of your client.  A demand by the defendant for the physical examination of a plaintiff is controlled by Code of Civil Procedure section 2032.  Section 2032 was adopted by the California legislature in 1986, and has sustained only a few minor amendments since that time.  The notion that the complainant will be forced to submit to an "independent" medical examination has been widely accepted since 1957, and infrequently criticized.” “The plaintiff may have her attorney or authorized representative accompany her to the examination…”

Court Decision Referenced in the Article-- Kennedy, 64 Cal. App. 4th at 679, 75 Cal. Rptr.2d at 375.  In Kennedy, the plaintiff slipped and fell in a Lucky grocery store.  64 Cal.App. 4th at 676, 75 Cal.Rptr.2d at 373.  Lucky demanded that the plaintiff submit to a medical examination pursuant to Code of Civil Procedure section 2032.  The plaintiff complied with the Demand for Physical Examination and then demanded a report of the examination, which she was entitled to pursuant to section 2032(h).  Lucky refused her request, and informed the plaintiff that the physician had not prepared a report, so there was no report to produce. The plaintiff brought a motion to compel the production of a report.  The trial court denied the motion, indicating that the examining doctor could not be compelled to prepare a report under section 2032.  On appeal, Lucky argued that the statute only requires disclosure of a defense examiner's report if the examiner actually prepared a report.  The appellate court disagreed:  "Although there is a general reluctance to order parties to produce reports not in existence, the statute clearly requires that a party who submits to a physical examination is entitled to a report of that examination, which must contain certain specified information.  The trade-off is clear:  if one party to personal injury litigation is required by his opponent to submit to a medical examination, at the very least he is entitled to a report of the information obtained by the adversary in litigation."  Kennedy, 64 Cal. App.4th at 678, 75 Cal.Rptr.2d at 375.  Thus, the holding is clear -- a plaintiff is always entitled to a report of compulsory physical examination.(1).  The Kennedy case also addressed another important issue:  if the defense demands an examination, designates an examiner, and that examiner conducts a physical examination of the plaintiff, the plaintiff must be allowed to depose that examiner, even if the defense does not later designate the examiner as an expert for trial.  (a party may not "hide" an expert from deposition by withdrawing him pursuant to the specific terms of section 2032).”

Additional Court Decision Referenced in the Article Ramirez v. MacAdam, 13 Cal.App.4th 1638, 16 Cal.Rptr.2d 911 (1993). “The court held that an audio record sufficiently satisfied the purpose of preserving an objective record - videotaping is too invasive of the plaintiff and doctor's privacy rights.”

Kapp, Howard A. “Important Limits on Defense Medical Exams.” Consumer Attorneys of Los Angeles Advocate Magazine. “The 1986 revision of the Discovery Act, especially the redrafted Code of Civil Procedure section 2032, provides powerful and cost-effective methods for materially limiting the nature and scope of almost all defense medical examinations. Most importantly, the typically unnecessarily invasive and shotgun ‘medical history by the defense doctor is no longer permitted.”

Synopsis—“The carefully balanced New Discovery Act does not provide for any “medical history taking” by the defense doctor—apparently deliberately. Moreover, the law and motion judge does not have the power, in equity or otherwise, to expand upon the discovery remedies or techniques expressly authorized by statute.

Court Decision Referenced in the Article—CITY OF HAYWARD et al., Plaintiffs and Appellants v. UNITED PUBLIC EMPLOYEES, LOCAL 390, 54 Cal.App.3d 761 (1976) 126 Cal. Rptr. 710, It is a well-known basic rule of statutory interpretation that “a court may not add to or detract from a statute’s words to accomplish a purpose that does not appear on its face of from its legislative history.”

Additional Court Decision Referenced in the Article—Edminston v. Superior Court (1978) 22 Cal.3d 699, 704, [150 Cal.Rptr. 276], the Supreme Court, applying the predecessor statute, Code of Civil Procedure section 2032, refused to allow videotaping of defense medical exams on the ground that the procedure was not “expressly” or “affirmatively” authorized by statute.

Olff, Edward P. D.C. “Reconstructionist in the M.I.S.T.” Consumer Attorneys of California Forum. “An accident can be reconstructed to determine liability and/or cause which is the reason for accident reconstruction, and the reason it was developed in the first place. To determine the injuries to the occupants you are going to need more than the delta-V and the acceleration. Conversely, you cannot merely look at a slightly scraped and damaged bumper and determine that the occupants could not have been injured. Worse yet, is to look at a vehicle with $700 damage and suggest that the occupants could not have been hurt because the damage is under $1000.”

Kapp, Howard A. “Prohibiting Medical Histories During Defense Medical Exams and Other Fancy Stuff.” Consumer Attorneys of California Forum. “Over 10 years ago, I published an article, 1 in which I argued that the defense had no right to request a so-called "medical history" that is, a thinly disguised quasi-deposition during a defense medical examination (DME).”

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Michael Haiby, RN provides the service of defense medical examination observer to plaintiff attorneys. Plaintiff individuals may ask their attorney's office to have their attorney’s office make contact with Michael Haiby, RN for more information on scheduling our DME observer attendance services--only an attorney can give legal advice—CONSULT YOUR ATTORNEY.