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St. Clair v. Hatch12/17/2002
__ P.3d __
ORIGINAL JURISDICTION ASSUMED; APPLICATION FOR WRIT OF PROHIBITION GRANTED; APPLICATION FOR WRIT OF MANDAMUS GRANTED.
We assume original jurisdiction over these discovery disputes to decide an issue of first impression: What factors must the trial court consider when determining whether to order a party to undergo a medical examination which the party to be examined deems unsafe?
I. FACTS
Plaintiffs sued Dr. Jorge A. Saborio (Dr. Saborio) and Durant H.M.A., Inc. d/b/a Medical Center of Southeastern Oklahoma (Medical Center) for medical malpractice arising out of laser ablation surgery performed on plaintiff, David Ray St. Clair, Sr. (St. Clair), by Dr. Saborio on July 21, 1994, during a cystoscopic examination. Dr. Saborio now seeks an order requiring St. Clair to submit to another cystoscopic examination, which involves inserting a thin flexible tube equipped with lights and a camera into the end of St. Clair's penis to visualize the urethra and other structures within the urinary tract. The procedure would also include a urodynamic study and urethral pressure study, which involve introducing fluid to see how the structures of the urinary tract handle that fluid. According to Dr. Saborio, these studies would measure the injuries St. Clair alleges in this case.
II. RELEVANT LAW - 12 O.S. § 3235(A) & (B)
Title 12, Section 3235 of the Oklahoma Statutes sets forth the procedures for obtaining, through discovery, physical and mental examinations of parties and persons in custody of or under the legal control of parties. The procedures differ depending on whether the physical condition of the party to be examined is, or is not, an element of that party's claim or defense. Subsections (A) and (B) govern when the party's physical condition is an element of that party's claim or defense. Subsection (C) governs when the party's physical condition is not an element of that party's claim or defense.
Under Subsections (A) and (B), applicable when a party's physical condition is in controversy and is relied upon as an element of that party's claim or defense, an adverse party "may take" a physical examination of the party. 12 O.S. § 3235(A). The adverse party must serve its request for the examination upon the party to be examined and all other parties, specifying the time, place, manner, conditions and scope of the examination as well as the name of the person who will perform the examination. 12 O.S. § 3235(B). No such request shall be served until thirty days after service of summons and petition upon the defendant. Id. The request shall set a time for the examination at least five days after service of the notice. Id. If the party to be examined objects, he/she may either file a motion objecting to the examination or apply for a protective order. Id. In either event, the burden of proof is on the objecting party. Id. A representative of the party to be examined may be present at the examination. 12 O.S. § 3235(D). The representative may be the party's physician, attorney or some other person. McCullough v. Mathews, 1995 OK 90, 918 P.2d 25.
When the party to be examined is relying upon a condition that is an element of that party's claim or defense, § 3235 favors the interests of the party seeking the examination to fully investigate and prepare its case. In such a situation the statute allows the adverse party to request a physical examination of another party without obtaining a court order.
If the party to be examined objects to the request for examination, he/she must file a motion setting forth any objections or file a motion for protective order. When the basis for the ob
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