Queen of Angels Hospital v. Superior Court

Opinion

FLEMING, J. Petitioner Queen of Angels Hospital (Hospital) is a defendant in an action for personal injuries to real party in interest Carroll Jones, a minor (Jones). Pursuant to oral stipulation, Hospital caused Jones to be physically examined by Dr. Gabriel in Februaiy 1975, and at Jones’ request Hospital furnished Jones a copy of Dr. Gabriel’s written report. In July 1975 Jones took Dr. Gabriel’s deposition.

[373]Thereafter, Dr. Sugarman, who had previously examined Jones on Jones’ behalf, caused Jones to be further examined by Dr. Menkes, a specialist in pediatric neurology. Dr. Menkes made a written report of his findings and conclusions, dated October 29, 1975, and transmitted his report to Jones’ counsel. Hospital orally requested a copy of Dr. Menkes’ report, but Jones’ counsel refused to honor the request.

Pursuant to Code of Civil Procedure section 2032 Hospital then moved respondent superior court for an order requiring Jones to deliver a copy of Dr. Menkes’ report and for an order permitting Hospital to call Dr. Menkes as a witness free from any claim of privilege by Jones. Jones opposed both motions on the ground that Dr. Menkes’ report and testimony were attorney work-product and hence immune from disclosure. Jones’ counsel stated he considered Dr. Menkes an adviser, he did not intend to call him as a witness, but he might continue to consult him as an expert. Respondent court reviewed Dr. Menkes’ report in camera, denied the motion for delivery of a copy of the report to Hospital, and ruled that while Hospital might call Dr. Menkes as its own witness it could not question the doctor about his report or any communication with Jones’ counsel, nor could it otherwise disclose to the jury the fact that the doctor had been initially employed by Jones.

On Hospital’s petition for writ of mandate, we issued an alternative writ, and, thereafter, a stay of proceedings in respondent court.

With respect to physical and mental examination of parties the governing statute is Code of Civil Procedure section 2032 which in relevant part provides:

“(a) In an action in which the mental or physical condition ... of a party ... is in controversy, the court. . . may order the party to submit to a physical or mental. . . examination by a physician ....

“(b)(1) If requested by the party against whom an order is made . . . the party causing the examination . . . shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions, together with like reports of all earlier examinations of the same condition. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party or persons examined a like report of any examination, previously or thereafter made, of the same condition. If the party or person examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just,...