Jorgensen v. Superior Court

California Court of Appeal Sep 12, 1958 No. Civ. 9492Published

Before: Schottky

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Holding. A medical report generated by a physician hired by a defendant to examine a plaintiff is not protected by the attorney-client privilege, and even if it were, the privilege is waived when the plaintiff submits to the examination.

Issues

Whether a medical report prepared by a physician hired by a defendant to examine a plaintiff is protected by the attorney-client privilege.
Whether a plaintiff is entitled to inspect a medical report resulting from a physical examination conducted by a physician hired by the defendant.

Disposition. remanded

Quotations verified verbatim against the opinion

“In the instant case the communication was by plaintiff to a physician engaged by counsel for defendant. In such a case the necessary element of attorney-client relationship is lacking”

“We conclude that the medical report requested by petitioner was not a privileged communication and that the court erred in denying petitioner’s motion for an inspection of it. But even if the report was privileged we believe that the privilege was waived.”

SCHOTTKY, J.

This is a petition for a writ of mandate to compel the respondent to set aside its order denying an application for the pretrial inspection of a certain medical report in the possession of the attorneys for Daniel McCaskill, the defendant in a civil action initiated by the petitioner.

On May 13, 1957, petitioner filed a complaint for damages due to personal injuries resulting from the alleged medical malpractice of defendant Daniel McCaskill.

The attorneys for defendant Daniel McCaskill requested that the petitioner be examined by Dr. John Adams. On January 14, 1958, the petitioner voluntarily submitted to a physical examination by Dr. Adams, whose report was thereafter transmitted to the attorneys for defendant.

The petitioner did not receive a copy of this medical report and her request for such copy was refused by the attorneys for defendant. Petitioner then, on March 14, 1958, moved the respondent court for an order to inspect and copy this medical report. This motion was denied on March 18, 1958. A subsequent motion to vacate the respondent court’s order of March 18,1958, was likewise denied on March 28, 1958.

The motions of petitioner before the respondent court were apparently made under the authority of sections 2031 and 2032 of the Code of Civil Procedure. Section 2031 in effect permits any party, upon good cause shown, to inspect and copy any documents or other papers in the possession of any other party. Section 2032 in effect provides that where the mental or physical condition of a party is in issue the court may, upon good cause shown, order a party to submit to a physical examination. The party examined pursuant to such order is then entitled to a copy of the medical report.

It appears that the motions of the petitioner were denied

[515]

solely on the ground that the medical report was privileged, the court stating: “It is, therefore, the Court’s opinion that the communications, whether they be oral or in writing, between Dr. Adams and counsel for defendant, are privileged and, therefore, not subject to inspection under Sections 2031 and 2032 of the Code of Civil Procedure.”

Jorgensen v. Superior Court

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SCHOTTKY, J.

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