Opinion
No. CV 03 0522135 S
January 25, 2006
MEMORANDUM OF DECISION RE MOTIONS #122, 123 OBJECTIONS TO MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF
The plaintiff alleges in her complaint that she was injured by the defendant Shane P. Wood's negligent operation of a motor vehicle.
By way of a pleading dated November 15, 2005, the Plaintiff objected to the Defendants' request for an independent medical examination to be performed by Dr. Stephen, D. Sarfaty of Comprehensive Neuropsychological Services. The Plaintiff asserted that Dr. Sarfaty "routinely performs examinations on behalf of defendants and therefore would not be independent."
By way of a pleading dated December 2, 2005, the Plaintiff objected to the Defendants' request for an independent medical examination to be performed by Dr. Brett A. Steinberg of Comprehensive Neuropsychological Services. The Plaintiff asserts that it had filed a timely objection to Dr. Sarfaty and that now the Defendants have simply substitued Sarfaty with the newest staff member of Comprehensive Neuropsychological Services. The Plaintiff further asserts that his reasoning for his objection to Dr. Sarfaty applies to all of the practicing neurophychologists who are associated with Comprehensive Neuropsychological Services.
On December 9, 2005 the Defendants filed a pleading entitled "Reply to Plaintiffs' Objections to Request for Independent Medical Examination."
Section 13-11 of the Practice Book concerns physical examinations. Subsection 13-11(b) of the Practice Book provides as follows:
(b) In the case of an action to recover damages for personal injuries, any party adverse to the plaintiff may file and serve in accordance with Sections 10-12 through 10-17 a request that the plaintiff submit to a physical or mental examination at the expense of the requesting party. That request shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. Any such request shall be complied with by the plaintiff unless, within ten days from the filing of the request, the plaintiff files in writing an objection thereto specifying to which portions of said request objection is made and the reasons for said objection. The objection shall be placed on the short calendar list upon the filing thereof. The judicial authority may make such order as is just in connection with the request. No plaintiff shall be compelled to undergo a physical examination by any physician to whom he or she objects in writing.
This issue had not been addressed by the Appellate Courts of this State and the Judges of the Superior Court disagree as to how an objection to an independent medical examination should be resolved.
It is clear that the Superior Court bench has now crafted several approaches to the issue and in Wallace v. Commerce Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV-95-0377552 (November 24, 1999) ( 26 Conn. L. Rptr. 25, 26) (Alander, J.), the court divided the various Superior Court decisions on the subject into three categories: "(1) the pragmatic approach which limits the plaintiff's right to object to grounds that are reasonable; [see Moore v. Minton, supra, 23 Conn. L. Rptr. 109; Fabozzi v. National R.R. Passenger Corp., Superior Court, judicial district of New Haven, Docket No. 245450 (October 25, 1988) ( 26 C.S.C.R. 889) (Corradino, J.); LeBlanc v. Cambo, 26 Conn.Sup. 338, 223 A.2d 311 (1966)]; (2) the absolutist approach which holds that a plaintiff has an absolute and unconditional right to object to a particular physician; [see Dittman v. Spotten, Superior Court, judicial district of New London, Docket No. 541013 (March 16, 1998) ( 21 Conn. L. Rptr. 414) (Hurley, J.); Argo v. Sender, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-90-0308615 (March 11, 1991) ( 3 Conn. L. Rptr. 315) (Jones, J.); Mulligan v. Goodrich, 28 Conn.Sup. 11, 246 A.2d 206 (1968);] and (3) the modified absolutist approach which opines that while a plaintiff has an absolute right to object to a particular physician the exercise of that right can be sanctioned in extreme cases; [see Privee v. Burns, supra, 46 Conn.Sup. 301]."
Sherman v. Axelrod, 49 Conn.Sup. 265, 268 (2005) ( 38 Conn. L. Rptr. 721).
Although this Court's view of this issue continues to evolve, it agrees with the well-reasoned and comprehensive decision of Judge Alander in Wallace v. Commerce Prop., Inc., et al, Superior Court judicial district of New Haven, at New Haven Docket No. CV95 377552 (Nov. 24, 1999, Alander, J.) Upon his examination of the subject statute Judge Alander observed that:
The statute's first sentence states, "In any action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeons." (Emphasis supplied.) The second sentence provides, "No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge." (Emphasis supplied.)
Judge Alander went on to state that:
The limitation placed on the judge's discretion by the second sentence does not undermine the court's authority to order a physical examination; it prohibits the court from compelling the plaintiff to attend such an examination. I read this language as authorizing a trial court to overrule a written objection to a particular physician and order the plaintiff to attend but not allowing the court to physically compel that attendance.
In the current situation the Plaintiff states that he is objecting to an independent medical examination by Dr. Brett A. Steinberg of Comprehensive Neuropsychological Services for reason that "Dr. Steinberg will not be fair and objective in his evaluation and therefore cannot offer an unbiased opinion. Comprehensive Neuropsychological Services, P.C. routinely performs examinations on behalf of defendants and insurance companies." Other than these bald assertions the Plaintiff does not provide any affidavits or other probative evidence to support his conclusion that Dr. Steinberg or any other physician associated with Comprehensive Neuropsychological Services, P.C. would not be fair and objective.
Although the courts in Privee and Wallace disagree about the significance of the statute's legislative history and whether a plaintiff objecting to a medical examination must have a good faith or reasonable basis for objecting to a particular medical examiner, the ultimate effect of both court's decisions was similar. Under either . . . approach, a plaintiff objecting to an independent medical examination may effectively thwart a defendant from obtaining such an examination; but in doing so, a plaintiff subjects itself to the possibility of sanctions that may just as effectively prevent it from prosecuting its case as that refusal hinders its opponent's ability to defend. (Citations omitted.)
Larsen v. New, 47 Conn.Sup. 536, 537-38, 812 A.2d 220, 33 Conn. L. Rptr. 433 (2002).
In light of the foregoing, this Court concludes as follows: The objections to the request for independent medical examination are overruled. The Court does not order the Plaintiff to attend the examination. However, in the event that the Plaintiff does not attend the examination, the Defendants shall notify the Court in writing and the Trial Court, at its discretion shall apply the sanction that it deems necessary and appropriate at the time of trial.
So ordered.