When you have an excellent observer at your plaintiff’s Defense Medical Exam, you know that your client is in good hands, stopping unauthorized DME questions, following your instructions to prohibit any x-rays during the doctor’s office visit, and preventing any attempts to have the client complete patient questionnaires, etcetera. The Code of Civil Procedure Section 2032 indicates that the Defense Medical Examination will not be painful, protracted, or intrusive. The RN observer performs the same whether or not the plaintiff attorney’s office produced a Response to Demand for Physical Examination. Common DME issues that we deal with are attempts to make the event prolonged (protracted) or intrusive--both of which are specifically prohibited by the law and are addressed in routine Response to Demand for Physical Exam stipulations—but again, we prevent these defense tactics whether or not the plaintiff attorney produces a Response to Demand for Physical Examination. If you have produced the document, and you email it to us, we give a copy of the Response to Demand to the doctor at the beginning of the examination.  Don’t send your plaintiff to their Defense Medical Exam without this excellent observer.

Have an excellent observer at your plaintiff’s defense medical exam

(see lower on webpage the ‘also known as term’s for a Response to Demand)--Mike’s favorite version of a Response to Demand:

Bill B. Billing, Esq., Bar No. 999999

Bill B. Billing, Esq., Bar No. 999999

9999 Any Street, Suite 999

Any City, California 90405

(310) 999-9999

Attorneys for Plaintiff

BILL PLAINTIFF

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

FOR THE COUNTY OF LOS ANGELES                                

 

NORTHWEST DISTRICT

 

BILL PLAINTIFF,		CASE NO.    LC999999
Plaintiff,
vs
		PLAINTIFF'S RESPONSE TO DEMAND FOR PHYSICAL EXAMINATION
DAVID XXXXX; XXXXX; and DOES 1 to 100, INCLUSIVE,
Defendants.
________________________

TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORDS HEREIN:

Plaintiff, BILL PLAINTIFF, hereby responds to defendant's Demand for Physical Examination as follows:

ASSORTED STIPULATIONS—CHOOSE YOURS…

#.            Plaintiff, BILL PLAINTIFF, agrees to allow a defense medical examination to go forward on January 14, 2008, at 7:30 a.m., at the offices Bill J. Doctor, M.D., 1520 Any Street Street, Suite 2000, Any City, California, under the following terms and conditions:

#.            Plaintiff may be accompanied by his attorney or other legal representative as allowed by C.C.P. '2032.510 to observe the examination.

#.             COMES NOW the Claimant _____, and pursuant to the terms and provisions of California Code of Civil Procedure, §2032.230, responds to Respondent NORTH LIGHT SPECIALTY INSURANCE COMPANY, Demand for Physical Examination (“EXAMINATION”) scheduled for November 14, 2023, at 11:15 a.m. as follows:

Pursuant to Section 2032.230 of the Code of Civil Procedure, Claimant hereby objects to the Respondent's demand to submit to an independent medical examination. The demand, as presently set out, is defective. Additionally, pursuant to California Code of Civil Procedure §2032.220, the demand must specify the time, place, manner, conditions, scope, and nature of the examination, and limit it to the parts of the body that have been placed into controversy.

Additionally, the physical examination must be limited to those clinical examinations which are specifically set forth in the demand or otherwise agreed to by the parties. Generalized references to "EXAMINATION" and are always improper; the statute requires that the Respondent set forth, with the use of specific medical names, the precise exam to be conducted.

The claimant sets forth the following additional objections and conditions for attendance at the Respondent defense medical examination:

The claimant will not provide the defense medical examiner with additional personal information including, but not limited to, the following:

1. Residence telephone number;
2. Medical insurance information or other insurance information;
3. Employment history;
4. Social Security Number

The basis of this limitation is that any request for the above-listed information would invade the Claimant's right of privacy, is impermissibly overbroad, and therefore oppressive, burdensome, and irrelevant to the subject matter of this action. See Britt v. Superior Court, 20 Cal.3d 844 (1978).

California courts have well recognized the abuses that can occur at defense medical

examinations. The compulsory physical examination is a stage of discovery in a lawsuit. While a physician is allowed to ask questions regarding Claimant's symptoms and injuries, the questioning often slides over into the area of liability, where it may produce real or claimed harmful statements about the circumstances of the event that is the subject of the lawsuit. Many physicians turn a defense examination into a form of unmonitored deposition in which the examinee is orally examined about factual matters at issue in the case but not relevant to the mental or physical examination. See Sharff v. Superior Court (1955) 44 Cal. 2D 508, 282 P. 2d 896.

In Sharff, the California Supreme Court held:

"The doctor…  …but he should not be allowed to make inquiries into matters not reasonably related to the legitimate scope of the examination. Whenever a doctor selected by the Respondent conducts a physical examination of the Claimant, there is always a possibility that improper questions may be asked...."

The legislature has now implemented the holding of the Sharff case in the New Discovery Act at Section 2032.510, allowing Claimant's observer to suspend the examination if the physician exceeds the scope of permissible questioning.

Code of Civil Procedure §2032.010 et seq. does not contain any language permitting the defense doctor to conduct a "medical history" examination of the Claimant. The statute's operative term is "physical examination" (the only exception being subdivision (h), which demonstrates that the omission of the term "history" throughout the rest of Section 2032.010 et seq was done deliberately and with knowledge of the difference between the two terms). Basic statutory interpretation states that "the court may not add to or detract from a statute's words to accomplish a purpose that does not appear on its face or from its legislative history." City of Haywood v. United Public, etc.; et al. (1976) 54 Cal. App.3d 761,762, 129 Cal. Rptr. 710 (emphasis added). Additionally, in Holm v. Superior Court (1980) 187 Cal. App. 3d 1241, 232 Cal. Rptr. 432, the appellate court held that a trial court had acted in excess of its jurisdiction in ordering the exhumation of a body in an attempt to discover indisputable relevant facts. As stated at page 1247:

"More recent cases have made it clear that the courts are without power to expand the methods of civil discovery beyond those authorized by statute...."

Similarly, in Edminston v. Superior Court (1978) 22 Cal. 3d 699, 704, 150 Cal. Rptr. 276, the Supreme Court in reviewing the predecessor of Section 2032, refused to allow videotaping of defense medical exams on the grounds that the procedure was not "expressly" or "affirmatively" authorized by statute. See also Volkswagonwerk v. Superior Court (1981) 123 Cal. App. 3d 840.

Additionally, a defense doctor's taking of a Claimant’s medical history is contrary to public policy. The New Discovery Act sought to eliminate redundant or unnecessary discovery and incorporated the constitutional doctrine of the right to medical privacy. Interrogatories, including those set out in Judicial Counsel form interrogatories 10.1, 10.2 and 10.3, have already sought information on Claimant's medical history.

The mere fact that Claimant has filed a personal injury lawsuit does not indicate that he or she has waived the right to privacy or the physician-patient privilege regarding unrelated matters. See, e.g., Britt v. Superior Court, 20 Cal. 3d 844, 864, 143, Cal. Rptr. 695 (1978); See also In Re Lifschutz, 2 Cal. 3d 415, 435, 85 Cal. Rptr. 829 (1970), wherein the Supreme Court held that disclosure cannot be compelled with respect to other aspects of the patient-litigant's personality even though they may in some sense be "relevant" to the substantive issues of the litigation.

#.          Pursuant to an agreement between counsel for the parties with respect to the limitations set forth above, the Claimant will appear at the scheduled Defense Medical Examination. If the defense counsel has any objection to the question limitations listed herein, the Claimant requests that the defense counsel promptly contact the Claimant's counsel so that any potential disputes may be resolved before the date of the scheduled examination.

#.            The claimant cannot be compelled to create any items of potential documentary evidence and will not fill out any charts, new patient records, forms, or histories that may be requested or provided by the defense medical examiner. The basis of this objection is that it is oppressive to require a Claimant to complete written forms as opposed to answering questions orally. To require the Claimant to complete written forms would violate the Claimant's right not to create items of demonstrative evidence for the Respondent’s use.

Regarding Suspension of Examination Due to Discovery Abuses by Examining Physician:

The claimant’s counsel, or a representative from their office, intends to attend the examination. We Request that the defense counsel requesting this examination, or their representative, be available by telephone on the date and time of the examination to resolve any conflicts that may arise if and when Respondent’s physician asks any improper questions or seeks to perform any physical examination or testing beyond the permissible scope as designated by the Court in Sharff, or otherwise engages in any improper or objectionable activities. If a dispute arises between Claimant's observer and the Respondent’s doctor regarding the permissible scope of questioning or examination, and neither defense counsel nor a representative is available to resolve the dispute, then Claimant's observer will use his or her own best judgment under the circumstances in determining whether or not to terminate the exam.

It is requested that Respondent’s counsel provide to the examining physician a copy of the demand for Physical Examination and this Response to said demand in advance of the date of the scheduled Physical Examination. The claimant and his counsel expect that said physician will be sufficiently familiar with the acceptable parameters of the examination, and the nature of the Claimant's objections, prior to commencement of the examination.

Please note that in the event that Claimant's observer is forced to terminate the examination due to misconduct by the Respondent’s doctor, neither the Claimant nor his counsel shall be held financially responsible for any costs or fees relating to the termination of the examination or any potential subsequent examination that may take place (or any costs or fees relating to the examination whatsoever as further stated within this Response).

The claimant also reserves the right to seek a protective order from the Court to prevent any further examination of the Claimant at any later time. In the event that such a protective order is necessary, Claimant shall seek sanctions against the Respondent, his counsel, and the examining physician for any abuses of the discovery process that may be attempted or may occur.

Financial Responsibility:

The claimant will not assume financial responsibility for any of the medical billings arising as a result of the Physical Examination, nor will Claimant execute an assignment of benefits form.

Limitation of X-rays and Diagnostic Tests:

Absent a court order compelling same, Claimant will not submit to any x-rays and/or MRI scans. X-rays are a known carcinogen and have been conclusively identified as a cause of cancer. Claimant, by and through Claimant's counsel, will authorize access to the prior x-ray of the area of the body injured in the underlying accident.

The claimant will not submit to urinalysis. Additionally, the Claimant will not submit to any procedures that are invasive, protracted, or painful (i.e., blood testing, etc.).

 

Regarding Postponement or Re-Scheduling of Examination:

The claimant reserves the right to seek to postpone or re-reschedule the examination at any time based upon good cause. The claimant does not acknowledge and will not be bound by any.

Minimum notice requirements maintained by the Respondent’s physician relating to cancellation, postponement, or re-scheduling of said examination.

Recording of the Examination:

Pursuant to the Code of Civil Procedure, Section 2032.310 and Section 2032.320, Claimant reserves the right to record the entire examination on audio tape or any other electronic/digital means.

 

#.            The examination may be audio taped by plaintiff and his representative as allowed by C.C.P. '2032.510.

#.            No other persons other than plaintiff, his representative, the court reporter, _____, M.D., and his staff are allowed to be present during the examination.

#             Any persons assisting Dr. Doctor must be fully identified by full name and title on the court report's record or to the attorney or representative.

#.            The examination must be limited to plaintiff's condition which are in controversy in this action, as provided by C.C.P. '2032.010 et. seq.

#.            This examination shall consist of a physical examination of our client, as authorized by Code of Civil Procedure Section 2032.220.

#.            Plaintiff or plaintiff's representative will not give an oral history of the incident.  Plaintiff will describe his injuries.  He will not orally relate medical history not related to the areas of injuries claimed in this lawsuit.

#.            No questions regarding plaintiff's medical, accident or other history shall be asked, in written form or orally.  The defense examiner will be limited to asking questions limited to plaintiff's then immediate physical sensations and/or complaints of pain or discomfort, or lack thereof, which are elicited by the exam itself.  The defense examiner may be provided by defense counsel with any records, depositions, responses to other discovery, or other things which defense counsel deems necessary to provide the examiner with any history.  Plaintiff reserves the right to provide examiner, if requested, with basic information to verify plaintiff's identity or other information such as weight, height, etc. without waiving any objections.

#.             Plaintiff will not orally relate a narrative of the treatment history Plaintiff has sought in relation to this injury.  Such information has been, or will be produced for Defendant, in writing.

#.            The defense doctor shall not attempt to take a lifetime medical history or inquire into areas which are protected by plaintiff's right to privacy.  The doctor shall not attempt to conduct a deposition of plaintiff with respect to details of the accident.  The deposition of the plaintiff can be given to the doctor if desired.

#.            No diagnostic test or procedure that is painful, protracted or intrusive will be allowed as set forth in C.C.P. '2032.220. This includes but is not limited to EMG's, nerve conduction studies, MRI's, EEG's, any type of injection and any type of electrical testing.  No blood or bodily fluids shall be taken from plaintiff without a court order or written agreement of the parties.

#.            Plaintiff will not sign any paperwork or fill out any paperwork at the doctor's office, including patient information forms or consent forms, because plaintiff is not a  patient of _____, M.D., and is consenting to this examination pursuant to the  requirements of C.C.P. '2032.010.

#.            No x-rays, CT Scans, or MRI's will be allowed. Plaintiff will make his relevant post accident x-rays, if any are available at the defendant's expense.

#.            No mental examination will be allowed.

#.            Dr. Doctor must be provided with a copy of this response prior to the examination.

#.            The total time for examination and testing, if applicable, will not exceed two (2) hours.  If any period of time exceeding thirty (30) minutes goes by when plaintiff is not being examined, either by Dr. Doctor and staff, then plaintiff will be free to leave.

#.            Plaintiff demands full compliance of C.C.P. '2032.610.  Plaintiff further demands a copy of any discoverable reports, records reviews, examination charges and writings generated by Dr. SMITH in the matter pursuant to Code of Civil Procedure Section 2032.610. This request includes a copy of a detailed written report,  setting out the history, examination, findings, including the results of all tests made, diagnoses, prognoses and conclusions of the examiner.  Plaintiff requests a copy of all reports of all earlier examinations of the same condition of the examinee made by that or any other examiner (C.C.P. '2032.610).  A copy of these reports shall be delivered within thirty (30) days after the service of the demand, or within fifteen (15) days of trial, whichever is earlier.  The protection from work product under C.C.P. '2018 is waived, both for the examiner's writings and reports and to the taking of the examiner's testimony.

#.            Plaintiff will appear at the scheduled defense medical examination.  However, plaintiff will not be unduly inconvenienced, by the defendant's defense examination.  Plaintiff will appear at the examiner's office on January 14, 2008 at the requested appointment time of 7:30 a.m..  If the defense examination has not commenced by 8:00 a.m. plaintiff will consider this protracted delay to be a waiver of defendant's rights to the defense examination and will leave the medical examiner's office, pursuant to Code of Civil Procedures, Section 2032 (c) 2.

DATED: January 7, 2008                                                BILLING & BILLING

BY:	BILLY B. BILLING
Attorneys for Plaintiff
BOB PLAINTIFF

                                                                                                                  

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am an employee in the County of Los Angeles, State of California.  I am over the age of 18 and not a party to the within action; my business address is 3250 Any Street., Suite 999, Any City, California 99999.

On February 24, 2023 I served the foregoing document described as PLAINTIFF'S RESPONSE TO DEMAND FOR PHYSICAL EXAMINATION  on interested parties in this action by placing the original thereof in a sealed envelope addressed as follows:

Mary Attorney, Esq.

Bobby, Bobby, & Bobby, LLP

999 Any Street, 15^th Floor

Any City, California 99999

(213) 999-9999

(213) 999-9999

  X           (BY MAIL) I am A readily familiar@ with the firm's practice of collection and processing correspondence for mailing.  Under that practice it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Santa Monica, California, in the ordinary course of business.  I am aware that on motion of the party served, service is presumed invalid if postal cancellation or postage meter date is more than one day after date of deposit for mailing in affidavit.

  X           (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed January 7, 2008, at Any City, California.

_____________________  

MARY SMITH

(also known as term’s for a Response to Demand): Response to Demand…, Objection to Demand…, Response to Notice…, and Objection to Notice—for Physical Examination, Independent Medical Examination or whatever verbiage is chosen by the defense attorney in their request for your client to be examined by their defense medical expert.

TERMINOLOGY LINKS:

Traumatic brain injury - Wikipedia

Traumatic brain injury

A traumatic brain injury (TBI), also known as an intracranial injury, is an injury to the brain caused by an external force. TBI can be classified based on severity ranging from mild traumatic brain injury (mTBI/concussion) to severe traumatic brain injury.^[5] TBI can also be characterized based on mechanism (closed or penetrating head injury) or other features (e.g., occurring in a specific location or over a widespread area).^[6] Head injury is a broader category that may involve damage to other structures such as the scalp and skull. TBI can result in physical, cognitive, social, emotional and behavioral symptoms, and outcomes can range from complete recovery to permanent disability or death.

Intervertebral disc - Wikipedia

Herniation (Herniated Nucleus Pulposus—HNP)

Stages of spinal disc herniation

Main article: Spinal disc herniation

A spinal disc herniation, commonly referred to as a slipped disc, can happen when unbalanced mechanical pressures substantially deform the anulus fibrosus, allowing part of the nucleus to obtrude. These events can occur during peak physical performance, during traumas, or as a result of chronic deterioration (typically accompanied with poor posture), and has been associated with a Propionbacterium acnes infection.^[8] Both the deformed anulus and the gel-like material of the nucleus pulposus can be forced laterally or posteriorly, distorting local muscle function and putting pressure on the nearby nerve. This can give symptoms typical of nerve root entrapment, which can vary between paresthesia, numbness, chronic and/or acute pain, either locally or along the dermatome served by the entrapped nerve, loss of muscle tone and decreased homeostatic performance. The disc is not physically slipped; it bulges, usually in just one direction.

Another kind of herniation, of the nucleus pulposus, can happen as a result of the formation of Schmorl's nodes on the intervertebral disc.^[9] This is referred to as vertical disc herniation.

California Personal Injury Law - HG.org

What Is Personal Injury Law in CA?

Personal injury law in California establishes the legal framework for imposing civil liability for injuries caused by the careless, reckless or intentional acts or omissions of others. If you were involved in a personal injury, it is important that you understand your rights. Here are some of the most important laws that may impact your personal injury claim in California.

Motor Vehicle Accidents

Below, are some of the laws most commonly associated with car accidents.

Pedestrian Laws
Driving Laws
Motorcycle Laws
Insurance Requirements
Duty to Give Information and Render Aid
Dram Shop Law
Dog Bites
Medical Malpractice
Product Defects
Negligence
Premises Liability 
Statute of Limitations
Pure Comparative Negligence Rule
Damage Caps and Limits
No Non-Economic Damages for Uninsured Drivers
Medical Malpractice Cases

Traumatic brain injury (TBI) has long been known to be associated with changes in mood, personality, and behavior -- Can Traumatic Brain Injury Cause Psychiatric Disorders? | The Journal of Neuropsychiatry and Clinical Neurosciences (psychiatryonline.org) (Psychological or Mental Injuries)

Major Depression
Bipolar Affective Disorder (Manic Depressive Disorder)
Generalized Anxiety Disorder
Obsessive-Compulsive Disorder
Panic Disorder (Panic Attacks)
Posttraumatic Stress Disorder (PTSD)
Substance Abuse
Personality Disorders

“Establishing an argument for causation of medical illness is often very difficult because the putative causative factor may be difficult to assess or may be confounded by the presence of other concurrent and potentially causative factors. This is certainly the case for TBI, in which the insult to the brain may be difficult to detect and may be accompanied by a host of other factors such as pain, losses, and hopelessness. It was not that long ago, however, that we also wondered about a causative relationship between newly discovered microscopic organisms grown in petri dishes and devastating epidemics of infectious diseases. This analogy is perhaps fitting, since clearly TBI may cause injury to the brain at the microscopic level and has been described as occurring at epidemic proportions.”

J Abnorm Psychol. 2008 Aug;117(3):662-72. doi: 10.1037/a0012591.

The structure of distress following trauma: posttraumatic stress disorder, major depressive disorder, and generalized anxiety disorder.

The structure of distress following trauma: posttraumatic stress disorder, major depressive disorder, and generalized anxiety disorder - PubMed (nih.gov)

Abstract

The current report used confirmatory factor analysis to examine the latent structures of both key features and associated symptoms of three disorders that commonly develop following a traumatic event: posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and generalized anxiety disorder (GAD). Participants were 228 motor-vehicle accident survivors who sought treatment for emotional difficulties. PTSD, MDD, and GAD were assessed with a combination of self-report and interview-based measures. The results of construct level analyses suggested that PTSD, MDD, and GAD are distinguishable but highly correlated disorders following a traumatic event.

Post-traumatic stress disorder - Wikipedia

Major depressive disorder - Wikipedia

Generalized anxiety disorder - Wikipedia

Post-traumatic stress disorder (PTSD)^[a] is a mental and behavioral disorder^[7] that develops from experiencing a traumatic event, such as sexual assault, warfare, traffic collisions, child abuse, domestic violence, or other threats on a person's life or well-being.^[1][8] Symptoms may include disturbing thoughts, feelings, or dreams related to the events, mental or physical distress to trauma-related cues, attempts to avoid trauma-related cues, alterations in the way a person thinks and feels, and an increase in the fight-or-flight response.^[1][3] These symptoms last for more than a month after the event.^[1] Young children are less likely to show distress, but instead may express their memories through play.^[1] A person with PTSD is at a higher risk of suicide and intentional self-harm.^[2][9]

Major depressive disorder (MDD), also known as clinical depressionThe diagnosis of major depressive disorder is based on the person's reported experiences, behavior reported by relatives or friends, and a mental status examination.

Causes

Environmental (adverse life experiences, stressful life events), genetic and psychological factors[5]

 Generalized anxiety disorder (GAD) is a mental and behavioral disorder,^[4] specifically an anxiety disorder characterized by excessive, uncontrollable and often irrational worry about events or activities.^[5] Worry often interferes with daily functioning, and individuals with GAD are often overly concerned about everyday matters such as health, finances, death, family, relationship concerns, or work difficulties.^[6][7] Symptoms may include excessive worry, restlessness, trouble sleeping, exhaustion, irritability, sweating, and trembling.^[1]  Symptoms must be consistent and ongoing, persisting at least six months, for a formal diagnosis of GAD.^[5][6] Individuals with GAD often have other disorders including other psychiatric disorders (e.g., major depressive disorder), substance use disorder, obesity, and may have a history of trauma or family with GAD.^[8]

Verify my Registered Nursing License through the Board of Registered Nurses.

Contact us now to schedule attendance at your client's DME anywhere in Los Angeles County, Orange County, and throughout Southern California, Northern California and Central California (and ‘all parts in between’).