MOHR v FOURTH JUDICIAL DISTRICT CO
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No. 82-312 I N THE SUPREME COURT OF THE STATE OF MONTANA 1983 SHARON M. MOHR, Relator, THE D I S T R I C T COURT OF THE FOURTH J U D I C I A L D I S T R I C T OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF MISSOULA, e t a l . , Respondents. ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For Relator: R a n d a l l 0. S k o r h e i m ; H a r t e l i u s & A s s o c i a t e s , G r e a t F a l l s , Montana F o r Xespondents: Candace F l e t c h e r ; Garlington, Lohn & Robinson, >lissoula, M o n t a n a S u b m i t t e d on B r i e f s : Decided: FEB j0 . 2983 & 2 -4 d , P ? Y ? d - - - Clerk September 27, 1982 F e b r u a r y 10, 1 9 8 3 Mr. Justice Daniel 2. Shea delivered the Opinion of the Court. This Court accepted jurisdiction of rel.atorls application for a writ of supervisory control directed t o the Missoula County D i s t r i c t The relator, a s a plaintiff Court. a personal injury action, had ir, moved the t r i a l court for a protective order t o the e f f e c t t h a t i n q a n t i n q the defendant's motion under Rule 35, M.R.Civ.P., court should permit p l a i n t i f f ' s examining room. the t r i a l counsel t o be present i n the The t r i a l court denied the motion and the p l a i n t i f f filed a p t i t i o n i n this Court askinq for a writ of supervisory control. W hold t h a t the party's attorney has a riqht t o k present e while the examining physician is tak-ing the c l i e n t ' s his ton^, but t h a t the attornev cannot he present during the physj-cal examination. During the discovery phase of Sharon Mohr's (plaintiff) personal injury s u i t against Ronald W. Wacksmuth (defendant) , the defense counsel f i l e d a motion under Rule 35, M.R.Civ.P. t o obtain an order compelling a neurological examination of the p l a i n t i f f . responded by asking the t r i a l court under Rule 26, Plaintiff . ., for M.R.Civ P a protective order all-wing plaintiff ' s counsel t o either be present during the examination, o r i f the motion for a protective order was denied, an order requiring the examination t o be videotaped. At a defendant's law and motion mtion hearing, for examination the trial court qranted and denied both p l a i n t i f f ' s m t i o n for a protective order and the alternative r q u ~ s t o have the examination recorded. videotaped. The court proceedings were not The court entered only a verbal order of denial and gave no explanation for i t s rulings. l a t e r entered. N written order o r explanation was o Courts have recognized the p o s s i b i l i t y t h a t whenever a doctor is selected by one party t o conduct a physical examination of another party, t h e doctor may ask improper questions. should not, without the assistance of eval-uate the propriety of developd which counsel, every question. permits a party A lay p r s o n be expected t o Therefore, undergoing a the rule court-ordered examination t o have the protection and assistance of counsel a t t h i s Sharff v. Superior Court (1955) , 44 Cal.2d 508, 282 examination. P.2d 896; W i l l i a m s v. Chattanooga Iron Works (1915), 1 4 1 Tenn. 683, 176 S.W. 1031. In f a c t , the common law r u l e permits a party t o have h i s attorney present a t any court-ordered physical emmination. 497, 501, S 5. 64 A.L.R.2d See This r u l e is designed t o insure t h a t a party can protect h i s r i g h t s t o r e f r a i n from mking any statem-nts o r admissions t h a t may be adverse t o h i s p s i t i o n . 64 A.L.R.2d See generally, 497. However, the c m n law r u l e has not always been adhered t o i n several jurisdictions which have adopted the federal rules of c i v i l See cases c i t e d in 64 A.L.R.2d procedure. interpreting Rule 35, 497, a t 503, S 6. In several courts have held. t h a t inherw-t in rules similar t o our Rule 35 (our Rule 35 is the same a s t h e federal Rule 35 a s it r e l a t e s t o an order f o r physical examination) i s t h e objective of proceeding. making the medical examination a nonadversarial Because t h e rule does not expressly permit the presmce of counsel, it is reasoned t h a t it is not a per se r i q h t . Bowing ~ 7 . Delaware Rayon Co. See, e.g. (1937), 38 D e l . 206, 208, 190 A. 567, 569. A federal court decision, Dziwanoski. v. (D. Md. 1-9601, 26 F.R.D. Ocean Carriers Corp. 595, in interpreting federal Rule 35, concluded t h a t under the r u l e s , a physician is an o f f i c e r of the court and therefore an attornev's presence adds nothing t o the examination. The court further concluded t h a t the p o s s i b i l i t y of an attorney's interference with an examination outweiqhs any kenefits of al-lowjng+he attorney's presence. We believe, h-ver, 26 F.R.D. at 597. that most attorneys make every possible effort to cooperate with physicians in an effort to make anv medj-cal--legal contact as m o t h and trouble-free as possible. Although we perceive potential for an attorney to abuse his presence at the physical examination, it does not extend to all parts of the medical procedure, specifical.ly, the history takinq part of the examination. We attempt to strike a balance between the rights of a litigant to counsel, and the need for efficiencv in the court-ordered examination process, giving due consideration to the needs of the medical examiner. A workable interpretation of h l e 35 is to allow the attorney's presence, as a matter of right, during the history taking part of the examination, but to exclude the attorney from the examining room while the physician is actually conducting the examination. The examined party therefore has the advice and benefit of counsel while the physician is taking the r - d c l history of the patient or teia gathering facts as to how the party was injured. On the ot-her hand, the attomey is excluded from the actual physical examination. The actual physical examination, at least in m s t cases, does not i r e the presence of counsel to safeguard its ohljectivitv because, by nature it is a nonadversarial procedure. Although abuses may still occur under court-ord.ered physical examinations under F i e 35, a trial court has the abilitv to remedy tl most potential abuses. For example, a trial court has the paver to, and should exclude from evidence, any statunents which a physician elicits from a party during the examination when the attorney is not present. See Dzi.wanoski v. Ocean Carriers Corp. , supra, 26 F.R.D. at 598. And, if an attomey becomes disruptive during the history taking part of an examination, the trial court may take steps under Rule 37, M.R.Civ.P., including sanctions, for failure t o cooperate in the discovery process. The order of the D i s t r i c t C o u r t is vacated and the court is instead directed t o enter an order f o r medical examination i n accordance with t h i s opinion. Justices Mr. Chief Justice Frank I. Haswell, dissenting: I dissent. I would not permit a physician's examining room to be transformed into a legal battleground between opposing attorneys where a reasonable alternative is available. Rule 35, M.R.Civ.P., permits a defendant in a personal injury action to secure a mental or physical examination of the plaintiff by a physician upon good cause shown. The Rule also provides that a detailed written report of the examination 35(b)(l). shall be to the plaintiff. Rule The court may prohibit admission in evidence of any portion lawsuit. furnished of the medical Rule 35(b) (2). record not relevant to the Thus, if improper or irrelevant questions are asked or answers elicited, the court may deny their admission into evidence. In my view, such procedure is adequate to protect the plaintiff and preferable to the course chosen by the majority. The following quotation from a case decided under Federal Rule 35 (the same as Montana's Rule 35 in pertinent part) represents my view: ". . . The object of a medical examination is to obtain medical data and information as to the plaintiff's condition. For this purpose the lawyer has no competence, and would not be able to assist or to protect his client. The only validity in the plaintiff's position would seem to be that if the lawyer is present he would be able to advise his client not to answer questions from the doctor which might constitute admissions with respect to the facts on which legal rights are based. "*thepractical and reasonable solution to the question seems to the Court to be to exclude from evidence any statements made by the plaintiff to the doctor relating to non-medical matters. Such an exclusion would constitute a protection to the plaintiff against any admission which might affect his rights, and would allow the physician to make the physical examination in such manner as he deems proper." Dziwanoski v. Ocean Carriers Corporation (D.C. Md. 1960), 26 F.R.D. 595, 597-598, quoting from an unpublished opinion of the Supreme Bench of Baltimore City. The majority today have established a rule which permits plaintiff's attorney to be present in the physician's examining room during the taking of plaintiff's medical history under all circumstances as a matter of right without any showing of special circumstances requiring the presence of plaintiff's attorney. In my view, such a broad holding finds no support in the language of Rule 35 and is directly contrary to the well-reasoned opinion in Dziwanoski v. Ocean Carriers Corporation, supra, and Simon v. Castille (La. 1965), 174 So.2d 660. For these two reasons, I respectfully dissent. 4 , 4 4 . ~ d Chief Justice I join in the foregoing dissent of Chief Justice Haswell.
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