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 : September 27, 1982
Decided: F e b r u a r y 10, 1 9 8 3
FEB j0
. 2983
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Clerk
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
Court. The relator, a s a plaintiff ir, a personal injury action, had
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., the t r i a l
court should permit p l a i n t i f f ' s counsel t o be present i n the
examining room. 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 .
Plaintiff responded by asking the t r i a l court under Rule 26,
M.R.Civ P . ., for 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 law and mtion hearing, the trial court qranted
defendant's motion for examination 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 videotaped. The court proceedings were not
recorded. The court entered only a verbal order of denial and gave
no explanation for i t s rulings. N written order o r explanation was
o
l a t e r entered.
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. A lay p r s o n
should not, without the assistance of counsel, be expected t o
eval-uate the propriety of every question. Therefore, the rule
developd which permits a party undergoing a court-ordered
examination t o have the protection and assistance of counsel a t t h i s
examination. Sharff v. Superior Court (1955) , 44 Cal.2d 508, 282
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. See
64 A.L.R.2d 497, 501, S 5. 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 . See generally,
64 A.L.R.2d 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
procedure. See cases c i t e d in 64 A.L.R.2d 497, a t 503, S 6. In
interpreting Rule 35, 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 making the medical examination a nonadversarial
proceeding. 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 . See, e.g.
Bowing ~ 7 . Delaware Rayon Co. (1937), 38 D e l . 206, 208, 190 A. 567,
569.
A federal court decision, Dziwanoski. v. Ocean Carriers Corp.
(D. Md. 1-9601, 26 F.R.D. 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. 26 F.R.D. at 597.
We believe, h-ver, 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 avail-
able.
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 shall be furnished to the plaintiff. Rule
35(b)(l). The court may prohibit admission in evidence of
any portion of the medical record not relevant to the
lawsuit. Rule 35(b) (2). 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 examina-
tion is to obtain medical data and infor-
mation as to the plaintiff's condition.
For this purpose the lawyer has no compe-
tence, 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 physi-
cian'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.
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Chief Justice
I join in the foregoing dissent of Chief Justice
Haswell.