Browne v. Superior Court

Opinion

RACANELLI, P. J. We issued our alternative writ of mandate to examine the single question whether a personal injury litigant may be compelled to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician. We conclude that neither statutory nor other authority sanctions the examination ordered by the trial court; accordingly, the petition must be granted.

Facts

The facts are undisputed: Petitioner filed a civil damage action against real parties for injuries allegedly sustained as a result of an automobile-motorcycle accident. Petitioner’s future wage loss is one of the disputed issues in the pending litigation. Although petitioner voluntarily submitted to a medical examination conducted by a licensed physician selected by real parties, he refused the latter’s request “to be examined and tested by Dr. Hal Ulery, a rehabilitation expert” on the grounds that a physical examination by a nonphysician was unauthorized by law.1 Thereafter real parties filed a written motion for an order pursuant to Code of Civil Procedure section 2032, subdivison (a)2 com-[613]polling petitioner “to submit to an interview and physical examination and/or testing by Dr. Hal Ulery” resulting in an order requiring petitioner to attend the requested “physical examination.” Aside from the designated time and place of the examination, the order made no mention of the manner, condition and scope of such examination. The order was stayed pursuant to stipulation pending review by extraordinary writ.

I. Propriety of Mandamus Review

Initially we address real parties’ contention that the use of the prerogative writ to review discovery orders is generally disfavored and the petition should thus be denied. (See Pacific Tel. & Tel. Co., v. Superior Court (1970) 2 Cal.3d 161, 170, fn. 11 [84 Cal.Rptr. 718, 465 P.2d 854].) It is unnecessary to engage in extended discussion concerning the propriety of extraordinary review of an important issue of statutory construction raised by a discovery order permitting the physical examination of a party by a nonphysician examiner, particularly where the aggrieved party is confronted with the Hobsonian choice of either submitting to the intrusive procedure or risking the sanctions of noncompliance. (See Roberts v. Superior Court (1973) 9 Cal.3d 330, 336 [107 Cal.Rptr. 309, 508 P.2d 309].) Moreover, since the petition presents a question of first impression likely to recur in future litigation, it provides an opportunity to establish clear guidelines for the benefit of trial courts and the legal profession and thus falls within the exception to the general rule precluding extraordinary review in discovery matters. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4 [23 Cal.Rptr. 375, 373 P.2d 439]; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 336 [155 Cal.Rptr. 525].) Finally, having issued our alternative writ, we have concluded that the remedy afforded by direct appeal is inadequate and that the use of the prerogative writ is appropriate herein. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155 [118 Cal.Rptr. 14, 529 P.2d 46]; Brown v. Superior Court (1971) 5 Cal.3d 509, 515 [96 Cal.Rptr. 584, 487 P.2d 1224]; People ex rel. Younger v. County of El Dorado (1971) 5 Cal. 3d 480, 492 [96 Cal.Rptr. 553, 487 P.2d 1193].)