Insurance Company of the West, a California Corporation v. Blakeslee

In taking an oral history related to the accident, Dr. McIntire, a board-certified neurologist physician, will seek to understand the exact nature of each of these symptoms, how they evolved since the accident, and whether the symptoms/conditions make sense neurologically or can be reasonably attributed to the accident in question.

Defendant cites Britt v. Superior Court (1978) 20 Cal.3d 844 for the proposition that the scope of permitted inquiry depends upon the nature of the injuries which the patient litigant himself has brought before the court. As relevant here, Britt discussed the defendant’s challenge to the trial court’s discovery order compelling them to disclose their entire lifetime medical histories.

“Plaintiffs stress, in this regard, that while they are completely willing to provide defendant with medical information which relates in any way to the physical or emotional injuries for which they seek recovery in the underlying action—and, indeed, that they have already done so—they object to the trial court's unlimited order which requires them to comply with defendant's request for 10 information related to all past medical conditions, without regard to whether such conditions have any bearing on the present litigation. The port district argues, in response, that the broad discovery order properly affords it the opportunity to determine for itself whether the injuries, which plaintiffs assert were caused by airport operations, actually arose from other medical conditions.” (Id., at p. 862.)

In reviewing the relevant statutory provisions, the Britt court determined that a patient’s privilege to refuse to disclose any “confidential communication” between himself and a treating physician or psychotherapist extends to a significant portion of the medical histories sought to be discovered in that case by that defendant.

By instituting a claim for physical or mental injury a patient does not automatically waive his statutory privilege as to all protected communications. (Ibid.)

There is only a limited waiver: “while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Id. at p. 864; see also Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 744–745 [Any party may obtain discovery by means of a physical or mental examination of a party to the action in any action in which the mental or physical condition that party is in controversy in the action.])

During an IME, the doctor should be free to ask such questions as may be necessary to enable him or her to formulate an intelligent opinion regarding the nature and extent of the plaintiff's injuries, but he or she should not be allowed to make inquiries into matters not reasonably related to the legitimate scope of the examination. (Sharff v. Superior Court of City and County of San Francisco (1955) 44 Cal.2d 508, 510.)

Defendant has provided the declaration of Dr. McIntire. Dr. McIntire states he was hired to conduct a standard, non-invasive neurological examination, which includes an assessment of gait, cranial nerve function, motor function, sensory function, reflexes, cerebellar function, mental status, and related neurological findings. (McIntire decl., ¶3.)

He states a focused medical history is a customary and necessary component of a neurological examination. (Id., at ¶4.)

In order to evaluate a patient’s neurological complaints, the examiner must obtain information concerning the nature of the symptoms, the onset and evolution of the symptoms, the frequency and severity of the symptoms, what affects the symptoms, treatment history, functional complaints, and related medical history. (Ibid.)

He states that the focused medical history he needs to obtain from Plaintiff is directed to the symptoms, injuries, treatment, and conditions relevant to the neurological issues presented for examination and is not intended to be an open-ended inquiry into unrelated medical issues. (Id., at ¶¶5-14.)

At the original IME, Dr. McIntire attempted to audio record the exam. He states he requested the audio recording because he wants to maintain a complete and accurate record of what was said during the examination, including the history provided and the communications during the examination. (Id., at ¶18.)

Dr. McIntire has audio recorded his IMEs for years and requires his own recording if another party is audio recording the exam. (Id., at ¶¶22-28.)

If no audio recording is allowed, Dr. McIntire does not object to the use of a court reporter. (Id., at ¶47.)

2. Opposition

Plaintiff has two main points in opposition. First, he argues the motion is procedurally defective because it was filed in anticipation of the discovery dispute and the Notice of Motion does not cite the correct statutes. Second, he argues the issue is moot because the parties have agreed to limit the oral history to the issues related to Plaintiff’s allegations in this action.

a. Procedural Defects

Plaintiff argues Defendant’s motion is defective because the Notice of Motion states that it is brought pursuant to CCP sections 2023.030 and 2023.010, which do not offer the requested relief. These code sections pertain to sanctions. However, the Notice of Motion also states that it is based upon the memorandum of points and authorities, the supporting separate statement, and the supporting declarations.

All documents in support of this motion were filed within the statutory period required by CCP section 1005(b).

Plaintiff argues Defendant’s motion is essentially premature or invalid because it was filed prior to when the IME actually occurred. No authority is cited that this motion cannot or should not be heard because the dispute was anticipated and occurred after the motion was filed.

Plaintiff also argues that Defendant has limited his motion to what is reasonably needed for the IME but that the original request was overbroad. The original Notice of IME for November 20, 2025, the Amended Notice of IME for January 22, 2026, lists what will be included in the IME. It states Dr. McIntire’s neurological evaluation will include:

• Gait exam: Assessment of how an individual ambulates or maneuvers

• Cranial nerve exam: Evaluation of visual, facial, vestibular functions and facial motor and sensory modalities

• Motor exam: Determination of muscle tone, bulk, strength, and dexterity

• Sensory exam: Assessment of the ability to sense different modalities

• Reflexes: Evaluation of tendon and other reflexes with a reflex hammer

• Cerebellar function: Assessment of coordination of movements

• Mental status: Evaluation of the ability of an individual to process information and communicate

• Inspection, manipulation and palpation: Movement of limbs/joints to determine changes in muscle tone, sensation, spasticity etc.

• A history-taking: Understanding the nature and evolution of symptoms, and how different factors have led to the symptoms or affect the symptoms.

It specifies it will not include any diagnostic test or procedure that is painful, protracted, or intrusive, absent written stipulation or court order and will be limited to a standard non-invasive neurological examination. (McGruder decl., Exhibits A, D.)

Based upon the Notices provided, it appears neither Defendant nor Dr. McIntire intended to ask about any medical history unrelated the injuries that are the subject of this action.

b. Mootness

Plaintiff argues this motion is moot because he has already agreed to comply with the examination with the limitation that the oral history is confided to the issues subject to dispute in this case. However, there are other issues in dispute including whether Dr. McIntire may audio record the examination and Plaintiff’s objection that he reserves the right to disrupt the examination.

3. Requested Order

Defendant requests an order requiring Plaintiff to appear for the IME on a mutually agreeable date; that Plaintiff be required to answer Dr. McIntire’s focused medical-history questions; that Plaintiff, Plaintiff’s counsel, and others attending in support of Plaintiff be prohibited from interfering with, disrupting, coaching, obstructing, answering for plaintiff, or terminating the examination based on unilateral conditions not ordered by the Court; and for clarification on the recording or reporting parameters for the exam.

Defendant’s request is reasonable. Plaintiff has not shown otherwise.

However, as to the request seeking to limit interruptions, Defendant has not addressed this issue except with respect to the issue of audio recording. Defendant has therefore not shown that an expanded order covering any and all disruptions is necessary.

With respect to whether Dr. McIntire may audio-record the IME, at Plaintiff’s option, he must allow either Dr. McIntire to audio-record the IME or have a court reporter transcribe it.

4. Sanctions

Defendant requests sanctions for a “misuse of the discovery process” for “failing to respond to, or to submit to an authorized method of discovery” pursuant to CCP section 2023.010 and 2023.030, and under CCP section 2032.250, which authorizes sanctions on a motion to compel compliance with an IME.

Pursuant to CCP section 2032.250, a sanction must be imposed unless this court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

The evidence establishes that Plaintiff did submit to an IME. (McIntire decl., ¶15.) The IME failed to fully proceed due to Plaintiff’s objection to having Dr. McIntire audio-record the IME. (Id., ¶¶16-39.)

Defendant has not provided authority that an audio-recorded IME is an authorized method of discovery or that it is not a legitimate objection. Therefore, sanctions are denied.

5. Conclusion and Order

Defendant’s motion is GRANTED as follows.

Plaintiff is directed to appear for and complete the neurological independent medical examination with Dr. McIntire on a date mutually agreed upon by the parties and Dr. McIntire.

Plaintiff is further directed to answer Dr. McIntire’s focused medical-history questions reasonably related to the current problems at issue and relevant time periods, including plaintiff’s claimed symptoms, treatment, and any related conditions reasonably necessary to evaluate the neurological injuries alleged in this case.

With respect to the issue of audio-recording, at Plaintiff’s option, he must allow either Dr. McIntire to audio-record the IME or have a court reporter transcribe it.

Defendant’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312.

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