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Oregon Rules of Civil Procedure 44, Fairness and the Search for Truth
"If we care about the world's best democratic system for the peaceful resolution of civil disputes, we should care about the need for procedural safeguards in compulsory medical examinations."—Don Corson, Oregon State Bar Bulletin, April 1999
Introduction
Proposed Oregon Rule of Civil Procedure (ORCP) 44F would allow a private examination of a represented defendant in a civil action by an investigator hired by plaintiff's counsel. The proposal has stiff opposition: What about the right to effective assistance of counsel, asks one critic? This would do violence to our procedural traditions, and would deny due process, says another. How can you expect the truth to come out of that exam? snorts a third. The proposal doesn't pass the smell test, complains a fourth.
Proposed ORCP 44F is a fiction. But the fact is that existing ORCP 44A-D practice raises even more troubling questions about fairness and the search for truth. On paper, ORCP 44A provides that when a party's mental or physical condition is in controversy, for good cause shown, a court has discretion to order the party to submit to an judicially specified exam. In practice, injured persons are routinely sent to exams without a showing of good cause, without judicial supervision, without an independent record of the proceedings, and without basic procedural safeguards to ensure fairness and accuracy.
Evolution of exam practice
A compulsory medical exam is an invasive procedure, intruding into a person's most private and personal matters. However, as originally conceived and applied, an occasional court-ordered medical exam made sense. Before modern discovery rules, some lawyers did not disclose medical records, or selectively furnished only some of the relevant records. The defendant then had legitimate need to learn about the injuries in controversy. Where there was good cause for such an exam, the court had discretion to order one. Typically, a local doctor was chosen who was subject to the court's limitations on the "time, place, manner, conditions, and scope" of the exam, as is now required by ORCP 44A. A local doctor was subject to the normal professional constraints of a community of practicing physicians. A doctor whose living came from treating patients, and who only occasionally was asked to do an exam for litigation, was not likely to become a systematically biased advocate.
The problem is, the practice has evolved to the point that ORCP 44 exams are now routine. These exams are commonly, but incorrectly, called "independent medical exams."1 A lucrative exam industry has sprung up, including out-of-town businesses which bill insurance companies and defense counsel in the six and sometimes seven figures annually, and which routinely grind out reports saying that the plaintiff has a preexisting condition, is malingering, has unrelated psychological problems, or has no significant residual injuries. Many of these businesses employ practitioners who primarily (or sometimes exclusively) practice "litigation medicine"--not traditional medicine involving treatment of a patient, but the writing of reports and giving testimony for litigation.2
The ORCP 44 Exam
What goes on in these ORCP 44 exams? In practice, defense examiners can conduct an unsupervised second deposition, asking questions about the accident, the person's background, and other matters. Such a fishing expedition typically is done without the safeguards of the person's counsel being present, an independent record, or judicial oversight. There is no effective check on whether tests were done appropriately, or test results or examinee's answers recorded accurately or completely. A report to defense counsel is prepared, sometimes with an unknown number of drafts.
What should go on in an ORCP 44 exam? The person should not be subjected to painful or invasive tests, cumulative or unnecessary procedures, health risks, or embarrassment or humiliation, and the examined person should be entitled to refuse certain procedures.3 The scope of the exam should be limited to injuries claimed to have been caused by the tortfeasor.4
Only a "physician" (or, for a mental exam, a "psychologist") may conduct an ORCP 44 exam. The court determines who will conduct the exam; the order is to specify "the person or persons by whom it is to be made."5 The examiner should be qualified to conduct an examination for the particular condition in controversy. A party should not have a unilateral right to select the examiner. The Oregon Supreme Court once said that "[i]f plaintiff has any objection to being examined by the doctor suggested by the defendant, the court should designate some physician of competent skill, indifferent between the parties."6 Other courts agree that a party cannot unilaterally determine the choice of examiners; the choice is ultimately for the court.7
An ORCP 44 exam is appropriate when "the mental or physical condition or the blood relationship" of certain persons is "in controversy," "for good cause shown." Of all the rules of discovery, ORCP 44 is unique. Depositions, document requests, and requests for admissions may be premised on simple relevance and the reasonable calculation that discovery may lead to admissible evidence. None of the other discovery tools requires judicial action to be initiated. Only ORCP 44 adds additional requirements of "in controversy," a showing of "good cause," and a court order.
The first element ("mental or physical condition") rarely presents a problem. The second element ("in controversy") can be problematic. For example, when is a mental condition in controversy? As an initial matter, generally a party affirmatively puts a condition in controversy in that party's pleadings; the other party should not be allowed to "bootstrap" a controversy with responsive pleadings. For example, alleging a claim for outrageous conduct involving infliction of severe emotional distress or causing a psychiatric condition may put the plaintiff's mental condition in controversy. A garden variety allegation of emotional distress, of the normal type that accompanies pain and suffering from an injury, should not justify a mental exam.8 When is a physical condition in controversy? There may not be a bright line, but past injuries or pain and suffering should not justify an exam, because they are no longer in issue.9
The third element required to justify a court-ordered exam, a showing of "good cause," is frequently ignored or not thoughtfully considered. "Good cause," a concept well-developed in other areas of Oregon law, is not addressed by any ORCP 44 appellate case. Elsewhere, a showing normally requires that the moving party submit admissible, relevant evidence. Good cause is not shown simply by the fact that a party is injured or has a health problem.10 Further, if the movant is able to obtain the desired information without an exam, there may not be good cause.11 If the available medical records are adequate, an exam would develop cumulative evidence, and may therefore not be needed.12 Even if good cause is shown, ORCP 44 is permissive, not mandatory: the court "may" order an exam. Whether to order an exam is for the court's sound discretion.13
The need for procedural safeguards
Oregon's rule does not specify many of the nuts and bolts of procedure. There is little Oregon appellate guidance, and most cases citing ORCP 44 do not address exam procedures.14 Other states have addressed procedures for court-ordered medical examinations, either by rule or by case law. The need for procedural safeguards should be clear. Otherwise, as Justice Douglas put it, if a party is simply turned over to "doctors and psychoanalysts to discover the cause of the mishap, the door [would] be open for grave miscarriages of justice."15
What should be the record of the exam? Under ORCP 39, ordinary deposition testimony is to be recorded. Fairness suggests that a person examined under ORCP 44 should also have the right to record the exam. Otherwise, there is no record of the proceeding, but only a letter that is exclusively controlled by the examiner. Some states provide for audio,16 video,17 or stenographic18 recording of exams. Oregon trial court rulings appear to vary; there is no real appellate guidance.19 The examinee's right to record the exam should be affirmed either by Oregon appellate decision or by express rule.
Who may be present at the exam? There is no physician-patient relationship in an ORCP 44 exam. An exam by a physician hired by the adverse insurance company or counsel is an adversarial proceeding that can be intimidating to the injured person. This is especially so where the person is young, disabled, has been traumatized, has had negative experiences with medical personnel, has suffered brain injury, or has language problems, among other reasons.
Having a representative present may be comforting to the person examined and provide some balance to this inherently unequal situation. Many states provide that the person examined has the right to have a representative present.20 The argument that the presence of a third party somehow interferes with a medical exam is contradicted by common sense and actual practice; for example, some exam businesses expressly note that third parties may be present.21 Under pre-ORCP Oregon law, the trial court had discretion to determine who may be present at a court-ordered medical exam, including the injured person's attorney.22 By rule or decision, the examined person should have the right to have a representative of his or her choice present, subject to judicial control over the representative's conduct.
What questions should an ORCP 44 examiner be allowed to ask? Certainly, a "physical examination" suggests that the person may need to answer questions such as, "does this hurt?" and "how far can you move this arm?" Just as certainly, an examiner should have no business asking the person the color of the other car.23 Medicine distinguishes between a "history" and "physical examination." ORCP 44 provides for mental and physical exams, but does not mention the taking of histories. Some attorneys instruct their clients not to give histories or fill out forms, on the grounds that this would go beyond the provisions of the rule. Furthermore, under Oregon discovery practice, extensive medical records containing the relevant medical history are usually made available in injury cases, which undercuts any argument that the examiner needs to take an oral history. It would be helpful to have some guidance, by decision or by rule, limiting the examiner's questions to those necessary for the "examination" of the injuries in controversy.
Where should the exam take place? Pre-ORCP Oregon case law suggested that an order can provide that "the examination be so conducted as to cause the litigant examined as little inconvenience as possible . . . ."24 In general, assuming that there are physicians in the relevant specialty in the county where the action is pending or the community where the plaintiff resides, it makes sense to hold the exam there. The rule, or appellate decision, should so provide.
Discovery
The right to cross-examine witnesses is fundamental to our adversary system of justice. Cross-examination is considered the trial's great engine to search for the truth. Effective cross examination requires that the attorney have access to relevant facts. That is one reason why the examined person's representative should be able to observe an exam. That is also the reason there should be full document discovery of the examiner's notes, correspondence, drafts, and dictations.
This does not mean that there should be pretrial depositions of ORCP 44 examiners on the merits of their reports. Although Oregon's attorney-client privilege prohibits discovery of an adverse party's experts, in legal theory an ORCP 44 examiner should be considered a court-appointed expert, not a party's expert.25 There is no general legal bar to relevant discovery directed to a person who is not a party's expert. Nonetheless, Oregon trial court judges have wisely avoided discovery depositions about ORCP 44 exams. Pretrial discovery of expert witnesses would add an additional level of cost in a system already so burdened by expense that some modest but legitimate disputes are priced out of our courts.
Oregon trial courts are split on the issue of document discovery relevant to the examiner's bias.26 Document discovery, as compared to depositions, is generally less expensive. There appear to be a handful of businesses that account for a large volume of the ORCP 44 exams, and allowing discovery of such things as business tax returns and financial records would permit a more meaningful inquiry into the issues of bias and credibility. Sharing of documents would obviate the need to ask for the same documents repeatedly, thereby promoting efficiency.27
Without document discovery, a witness's testimony is unfettered by the facts revealed in the documents. The value of cross-examination depends on the ability to impeach, and the ability to impeach depends in part upon having access to relevant documents. Such discovery should be allowed.
Conclusion
Why should we care about ORCP 44, fairness, and the search for truth? Justice Douglas warned us that adversary doctors, what he termed "prejudiced medical eyes"--"will naturally be inclined to go on a fishing expedition in search of anything which will tend to prove" their party's case.28 Once parties "are turned over to medical or psychiatric clinics for an analysis of their physical well-being and the condition of their psyche, the effective trial will be held then and there and not before the jury. . . . The doctor or the psychiatrist has a holiday in the privacy of his office. . . The [party] is at the doctor's (or psychiatrist's) mercy; and his report may either overawe or confuse the jury and prevent a fair trial."
Why should we care about ORCP 44, fairness, and the search for truth? Beyond the fact that ORCP 44 is a two-edged sword (it can be turned on either plaintiffs or defendants), unfair pretrial procedures fuel public cynicism about our courts. Recent Oregon public opinion polls find that public trust in our court system is low, and falling. A perceived major problem is that the rich and powerful have an unfair advantage, while too many people cannot even afford a lawyer. The public needs to have confidence that the legal playing field is level.
If we care about the world's best democratic system for the peaceful resolution of civil disputes, we should care about the need for procedural safeguards in compulsory medical examinations.
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1 ORCP 44, like its parent rule, FRCP 35, does not call a court-ordered exam "independent," or an "IME." Such exams are adversary proceedings.
2 See, e.g., "Doctors for Sale," Willamette Week, Vol. 23, Issue 2 (November 13, 1996) at p.16 passim.
3 See, Acocella v. Montauk Oil Transp. Corp., 614 F. Supp. 1437 (S.D.N.Y. 1985); Duprey v. Wager, 451 A.2d 416, 419 (N.J. 1982); Carrig v. Oakes, 18 N.Y.S.2d 917 (N.Y. 1940); Mackay Telegraph-Cable Co. v. Armstrong, 241 S.W. 795, 797 (Tex. 1922); Gilbreath v. Prairie Oil & Gas Co., 278 P. 707, 711 (Kan. 1929).
4 See Nitzel v. Jackson, 879 P.2d 1222 (Okla. 1994) (document discovery limited to medical records relating to accident injuries).
5 ORCP 44A.
6 Carnine v. Tibbetts, 158 Or. 21, 34, 74 P.2d 974 (1937) (pre-ORCP). Bridges v. Webb, 253 Or. 455, 455 P.2d 599 (1968), a later pre-ORCP case, said that the Carnine statement was dicta, and suggested that an examinee's objections must be "substantial."
7 See, Stinchcomb v. United States, 132 F.R.D. 29, 30 (ED Pa. 1990) (defendant cannot unilaterally select the examiner); Stuart v. Burford, 42 F.R.D. 591, 592 (N.D. Okla. 1967) (defendant cannot unilaterally select examiner); Martin v. Superior Court, 104 Ariz. 268, 451 P.2d 597 (1969) (if serious objection, trial court has duty to determine); Hagmier v. Consolidated Rail Corp., 545 N.Y.S. 2d 861 (A.D. 4 Dept. 1989) (select another examiner if there is history of bias or hostility); White v. State Farm Mut. Auto Ins. Co., 680 So.2d 1 (La. App. 3 Cir. 1996) (disallow examiner with documented history of advocacy against injured litigants); Munz v. Peters, 291 N.Y.S. 2d 521 (1968) (court has discretion to appoint physician, or decline defendant's choice, in interests of justice); Liechty v. Terril Trucking Co., 53 F.R.D. 590 (E.D. Tenn. 1971) (court will select practitioner if parties cannot agree).
8 See, Cody v. Marriott Corp., 103 F.R.D. 421, 423 (D. Mass. 1984) (mental condition not in controversy for simple claim for emotional distress, as distinguished from a claim of psychiatric injury or disorder requiring professional treatment); O'Quinn v. New York University Medical Center, 163 F.R.D. 226 (S.D.N.Y. 1995) (mental condition not in controversy in employment discrimination action where there was no independent tort claim for emotional distress and no allegation of "severe" emotional distress); Robinson v. Jacksonville Shipyards Inc., 118 F.R.D. 525, 531 (M.D. Fla. 1988) (denying defendant's request for a mental exam in a sexual harassment case alleging stress and serious adverse effect to psychological well-being); see also Sabree v. United Brotherhood of Carpenters and Joiners of America, Local No. 33, 126 F.R.D. 422, 426 (D. Mass. 1989) (no discovery of plaintiff's psychotherapist's records in a "garden variety" claim for emotional distress).
9 Coca-Cola Bottling Co. v. Negron Torres, 255 F.2d 149 (1st Cir. P.R. 1958); Bridges v. Eastman Kodak Co., 850 F.Supp 216, 222 (S.D. N.Y. 1994).
10 See Schlangenhauf v. Holder, 379 U.S. 104, 118-119, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (good cause is not a mere formality, but a limitation on court-ordered exams; the standard is not met by conclusory allegations of the pleadings, or by mere relevance, but can be established by the pleadings in appropriate cases).
11 See Martin v. Tindell, 98 So.2d 473, 475 (Fla. 1957); Hughes v. Groves, 47 F.R.D. 52, 57 (W.D. Mo. 1979); Petition of Trinidad Corp., 238 F.R.D. 928, 935 (Va. 1965); Marroni v. Matey, 82 F.R.D. 371 (E.D. Pa. 1979); see also Schlagenhauf, supra.
12 See Richardson v. Johnson, 444 S.W.2d 708 (Tenn. 1969) ("examination cannot be had merely to obtain cumulative evidence").
13 Under pre-ORCP Oregon law, a motion for an exam was addressed to the discretion of the court. Dorn v. Wilmarth, 254 Or. 236, 458 P.2d 942 (1969).
14 Post-ORCP 44 cases include: Boline v. Whitehead, 119 Or. App. 230, 850 P.2d 1128 (1993) (sanctions for failure to appear at a court-ordered exam); Smith v. Children's Services Div., 120 Or. App. 506, 852 P.2d 957 (1993) (no prejudicial error in failing to exclude testimony of ORCP 44 physician who did not prepare report); Morris v. Fred Meyer, Inc., 103 Or. App. 236, 795 P.2d 1115 (1990) (trial court discretion to exclude testimony of psychiatrist who did not produce report); Martin v. Bohrer, 84 Or. App. 7, 733 P.2d 68 (1987) (plaintiff may seek recovery for additional injuries sustained in ORCP 44 exam); Barry v. Don Hall Laboratories, 56 Or. App. 518, 642 P.2d 685 (1982) (no abuse of discretion in failing to exclude testimony for physician's late delivery of report).
15 Schlagenhauf v. Holder, supra, 379 U.S. at 125.
16 See, e.g., Arizona R. Civ. P. 35(a); Calif. Code of Civil Procedure 2032(g); Jacob v. Chaplin, 639 N.E.2d 1010, (Ind. 1994); WA Court Rule 35(a).
17 See, e.g., Arizona R. Civ. P. 35 (upon showing of good cause); Broyles v. Reilly, 695 So.2d 832 (Fla. 2nd DCA 1997).
18 See, e.g., Calif. Code of Civil Procedure, 2032(g).
19 In Boline v. Whitehead, supra, 119 Or. App. 230, the trial court had ordered a tape recording of the exam, but that was not an issue on appeal.
20 See, e.g., Langfeldt-Haaland v. Saupe Enterprises, 768 P.2d 1144 (Alaska 1989) (examinee's lawyer may attend); Munoz v. Superior Court of Santa Clara County, 26 Cal. App.3d 643, 102 Cal. Rptr. 686 (1st Dist. 1972); Brompton v. Poy-Wing, 704 So.2d 1127 (Fla. 4 DCA 1998) (attorney generally may attend); Broyles v. Reilly, 695 So.2d 832 (Fla 2d DCA 1997); Michigan Court Rule 2.311 (order for exam may allow plaintiff's counsel to attend); Reardon v. Port Authority, 132 Misc.2d 212, 503 N.Y.S.2d 233 (1986) (attorney may attend mental exam); Okla Stat. tit. 12, section 3235(D); McCullough v. Mathews, 918 P.2d 25 (Okla. 1995) (representative may be person's attorney); WA Court Rule 35(a) (allows presence of attorney); Tietjen v. Department of Labor and Industries, 313 Wash. App. 86, 534 P.2d 151 (1975) (attorney may attend physical and mental exam).
21 See, e.g., Western Medical Consultants, Inc.'s form ("You may want to bring one person with you into the exam, unless your examination involves a psychiatric review"); see also Tri-Met, Inc. v. Albrecht, 308 Or. 185, 777 P.2d 959 (1989) (upholding finding in workers compensation context that presence of claimant's lawyer did not constitute obstruction of the exam).
22 Pemberton v. Bennett, 234 Or. 285, 381 P.2d 705 (1963).
23 Although this, and similar non-medical questions, are asked in practice. See, e.g., Gota affidavit filed in Lane County Circuit Court case no. 16-97-03822.
24 Carnine, supra, 158 Or. at 34. But see pre-ORCP 44 Bridges v. Webb, supra (Roseburg area examinee seen by Medford doctor; in unreported trial court proceedings, plaintiff apparently had failed to attend exam, without advance notice).
25 Even before adoption of the ORCP, a defense medical examiner could be called as plaintiff's trial witness. Nielson v. Brown, 232 Or. 426, 374 P.2d 896 (1962). But see Bridges v. Webb, supra, 253 Or. at 456 (dictum that a defense medical examiner was there considered the defendant's expert witness).
26 See DeVore, "The New Discovery Battle - Money and the Independent Medical Exam," in this issue of the Bulletin.
27 Sharing discovery promotes efficiency and justice, conserves judicial resources, helps to level the playing field, reduces costs, reduces discovery demands on the custodians of the requested documents, and avoids needless duplication of work. See, e.g., Burlington City Bd. of Education v. U.S. Mineral Products Co., 115 F.R.D. 188, 190-91 (M.D.N.C. 1987) ("courts considering this matter have overwhelmingly and decisively endorsed the sharing of discovery among plaintiffs"); Olympia Refining Company v. Carter, 332 F.2d 260 (9th Cir. 1964); Kraszewski v. State Farm General Ins. Co., 139 F.R.D. 156, 159 (N.D. Cal 1991); Raymond Handling Concepts v. Superior Court, 45 Cal. Rptr. 2d 885, (Cal. App. 1 Dist. 1995); Garcia v. Peeples, 734 S.W.2d 343, 346 (Tex. 1987).
28 Schlagenhauf, supra, 379 U.S. At 125.
29 Id.
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