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Olges v. Dougherty8/29/2003
Petition for Writ of Certiorari - Original Jurisdiction.
By petition for writ of certiorari, Darrell Olges, the plaintiff in an automobile accident case, asks us to quash a trial court's order (stayed pending review here), compelling him to "submit to an examination . . . including a psychological clinical interview and . . . psychological testing." We grant the petition for writ of certiorari and quash the order.
I.
Mr. Olges brought suit seeking to recover damages for injuries allegedly sustained on March 28, 2001, when the car he was driving collided with Brett Steven Trask's car, which Michelle Dougherty was driving. The original complaint sought damages for "bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously existing condition." Later, faced with the prospect of a mental examination, he withdrew all claims for damages for future lost wage-earning capacity, past or future mental anguish, and past or future emotional distress or other emotional damages.
On October 9, 2002, Ms. Dougherty and Mr. Trask filed a motion seeking an order requiring Mr. Olges to submit to a "vocational rehabilitation evaluation" conducted by one Michael Shahnasarian, Ph.D., who is, among other things, a licensed psychologist, licensed mental health counselor, diplomate of the American Board of Psychological Specialties, certified rehabilitation counselor, and certified life care planner. Mr. Olges objected and moved for a protective order, arguing that a "vocational rehabilitation evaluation" was not warranted because he had withdrawn his claim for future lost wage-earning capacity. Anticipating that Dr. Shahnasarian would conduct psychological testing, the motion for protective order also argued that Mr. Olges "should not be required to submit to psychological evaluations or other similar procedures under the guise of a `vocational rehabilitation evaluation.'"
II.
At the hearing on the motions on November 7, 2002, the defendants below shifted their ground somewhat, seeking to compel Mr. Olges to submit to an evaluation by Dr. Shahnasarian principally in his capacity as a life care planner. Dr. Shahnasarian testified that in preparing Mr. Olges's life care plan he would take into account the spinal column stimulator prescribed by Christopher Roberts, M.D., Mr. Olges's treating physician and a pain management specialist. But Dr. Shahnasarian also testified that he wanted to perform psychological testing. He told the trial judge that physicians who are pain management specialists typically "order a battery of psychological testing" before prescribing a spinal column stimulator, stating: " t is standard practice among physicians to do some type of a testing, typically the MMPI, which is a test that I would like to administer to Mr. Olges, prior to recommending implant . . . ."
In response to Dr. Shahnasarian's testimony -- and defense counsel's argument that Dr. Shahnasarian should be allowed "to comment on" the use of an implanted device for managing Mr. Olges's pain -- the trial judge asked (then answered) a rhetorical question: "What can he possibly comment on whether or not that is an effective modality for the treatment of pain? He's not an MD." The trial judge denied the motion for protective order nevertheless, and directed Mr. Olges to submit to examination by Dr. Shahnasarian, for the stated reason that pain management treatment involves "a very heavy emphasis on the psychological aspect of the party."
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