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Grande v. DiBenedetto2/19/2004
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 16, 2003
This appeal requires us to consider whether a defendant doctor is entitled to compel a plaintiff to undergo an invasive procedure to allow the doctor to defend the underlying medical malpractice action. We hold that such an application requires a motion judge to carefully balance whether the probative value of the proposed invasive procedure outweighs any danger or extraordinary discomfort to plaintiff that may be associated with the procedure. Where a R. 4:19 medical examination involves an invasive procedure, we conclude that if plaintiff moves for a protective order, R. 4:10-3 and R. 4:19, the burden of coming forward to establish the probative value of such procedure rests with defendant; plaintiff then must produce evidence that the proposed procedure presents a risk to plaintiff's health or is of such a nature that it will create substantial discomfort or distress; thereafter, the burden shifts back to defendant to establish the safety and reasonableness of the procedure. The judge must then engage in the weighing process that we have described, and if the judge concludes that the benefits outweigh the risks as we define them, the judge may issue an appropriate order having due regard for plaintiff's safety and comfort. In all instances, the judge must consider whether such application or objection is made in good or bad faith.
We reverse and remand. We conclude that here, the motion judge failed to consider all of the appropriate factors and to make sufficient findings, and thus did not adequately engage in this weighing process. We further conclude that she abused her discretion when she barred plaintiff's claim if plaintiff failed to submit to the procedure. We hold that a defendant's remedy, where defendant has failed to meet his burden to compel such an examination, is to challenge plaintiff's expert on cross-examination. Where a plaintiff fails to submit to an invasive procedure that a judge has determined to be warranted, possible remedies include, but are not limited to, questioning both parties' experts as to the nature of the proposed procedure and commenting to the jury as to plaintiff's refusal to submit to the procedure. Only in the exceptional case may a judge impose the sanction of barring plaintiff's claim.
I.
On October 31, 1997, Plaintiff Carolyn Il Grande underwent a cesarean section at St. Barnabas Hospital to deliver her baby. During the surgery, defendant Robert DiBenedetto, M.D. incised plaintiff's cervix and bladder instead of the uterus, resulting in lacerations of the dome of the bladder. The incisions were noticed post-delivery and repaired by Caterina Gregori, M.D., the surgeon summoned for an intraoperative consult.
During her follow-up visits to Dr. Gregori, plaintiff was found to be"healing well," and normal recovery of plaintiff's bladder was expected; two months after the surgery, plaintiff told Dr. Gregori"that her bladder was working okay." On June 25, 1998, plaintiff complained of pain during sexual intercourse, but Dr. Gregori's medical notes indicated no complaints of"inadequate bladder capacity," frequency or painful urination either then or on plaintiff's next two visits, on December 17, 1998, and August 5, 1999. Thereafter, on October 29, 1999, plaintiff filed a complaint against defendant. Among her allegations was that defendant's negligence"caused to sustain severe and permanent injury and deformity... endure great pain and suffering." On August 24, 2000, plaintiff again consulted with Dr. Gregori, complaining of"burning after urination," but offered no other complaints.
Then, on M
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