IME Doctor Withdrawn or Redesigned as a “Consultant” Must Still Provide Report Upon Demand

The independent medical examination (IME) is a discovery tool frequently utilized by litigators to ascertain the alleged injuries of an opposing party. See Code of Civil Procedure section 2032(c). Since the party requesting the IME selects the doctor who will perform the examination, the results of that examination are usually of great interest to opposing counsel. Often litigators will decide whether to pursue a rigorous defense or settle the plaintiff's claims based on the results of an IME.

The California Court of Appeal, First Appellate District, has ruled that a party is entitled to a report of an IME on demand, even if the examining physician has not prepared one. In Kennedy v. Superior Court of Marin County, 98 Daily Journal D.A.R. 5989 (1998), the court ruled that a party who has submitted to an IME has the right to depose the examining physician, even if the party that requested the examination has withdrawn the physician as an expert witness or redesignated him or her as a "consultant."

In this case, plaintiff Elizabeth Kennedy slipped and fell at a Lucky Supermarket, sustaining injuries to her face. Kennedy claimed that the severity of her injuries necessitated plastic surgery. Defendant demanded that Kennedy submit to an IME to determine the validity of her claims. She was then examined by a plastic surgeon and, following the surgery, requested a report of her examination. Defendant refused, however, stating that the doctor had not prepared a report of the examination and that the doctor had been withdrawn as an expert and redesignated as a consultant. Thereafter, Kennedy filed a motion to compel production of an examination report. The trial court denied her motion, to which she sought a writ of mandate, asking the appellate court to evaluate the trial court's discovery ruling.

The court held that Code of Civil Procedure section 2032(h) clearly states that any party who submits to an IME is entitled to a report of that examination. "The trade-off is clear; if one party to a personal injury litigation is required by their opponent to submit to a medical examination, at the very least they are entitled to a report of the information obtained by their adversary in litigation." Moreover, the fact that defendant had withdrawn its doctor as an expert did not shield the doctor from being deposed by Kennedy. Section 2032(h) provides that the work product privilege is waived with regard to the examiner's writings, reports and testimony.

The court further stated the answer was so obvious that it would issue an accelerated ruling, a peremptory writ of mandate, without oral argument.

In conclusion, it is important that the party requesting an IME select a qualified, experienced physician to conduct the examination. A party dissatisfied with the IME results may not decline to provide a report simply because the examining physician has been withdrawn or redesignated as a nonexpert or consultant. Once an IME has been conducted, any party may demand to see a report of that examination, no matter what the examination results yield.

Mr. Diaz is an Associate in the firm's Litigation Practice Group, specializing in civil litigation matters.