 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hayes v. District Court6/21/1993
In this original proceeding the petitioner, Nicole A. Hayes, seeks an order directing the respondent, the District Court in and for the City and County of Denver, to enter an order allowing the petitioner to be accompanied by her attorney or a paralegal to a court-ordered medical examination and to tape record the examination. Having issued a rule to show cause why the requested relief should not be granted, we now discharge the rule.
I
This case arises out of an automobile accident involving the petitioner and the defendants, ABC Print & Frame, Ltd., and its employee, Russell T. Donelson (hereinafter collectively referred to as ABC). The petitioner filed a civil action against ABC for personal injuries she allegedly sustained in June 1990, as a result of an automobile accident. The petitioner alleges, inter alia, that as a result of ABC's negligence she suffered serious injuries, including headaches, neck and low back pain, and a closed head injury that affects both her short term and long term memory.
On May 22, 1992, ABC filed a motion pursuant to C.R.C.P. 35(a) requesting the trial court to order the petitioner to submit to a physical examination by a designated orthopedic surgeon, Dr. Barry Lindenbaum. The petitioner agreed to undergo an independent medical examination but objected to the designation of Lindenbaum as the examiner on the grounds that he was biased against plaintiffs in personal injury litigation and that her counsel and Lindenbaum had previously been involved in litigation over fees regarding treatment rendered by Lindenbaum to the petitioner's counsel. The petitioner asserted that under these circumstances Lindenbaum would inject bias and prejudice into his examination and that such issue could not be addressed adequately at trial by cross-examination. The petitioner requested the trial court to enter an order requiring the examination to be conducted by another orthopedic surgeon mutually satisfactory to counsel for all parties.
On June 4, 1992, the trial court issued an order granting ABC's motion and requiring the petitioner to submit to a medical examination by Lindenbaum on June 5, 1992. The trial court noted the petitioner's objections but concluded that Lindenbaum would be able to separate his prior litigation experience with the petitioner's counsel from the petitioner and render a professional, objective evaluation of the petitioner's medical condition.
Upon learning of the trial court's order, the petitioner's counsel directed his paralegal to accompany the petitioner to the medical examination and to tape record the examination. When the petitioner's attorney informed ABC's attorney of this decision, the latter attorney communicated this information by telephone to Lindenbaum's office and was informed by Lindenbaum's office manager that Lindenbaum does not conduct independent medical examinations under such circumstances. The office manager explained that Lindenbaum felt such procedure would hinder his ability to establish rapport with the examinee, would intimidate him personally, and would inhibit the examinee from communicating candidly during the examination.
On June 5, 1992, the trial court conducted a hearing to review the status of his discovery order. During the hearing the petitioner advanced the argument that she should not be examined by Lindenbaum in the absence of a third party and a tape recorder because an independent medical examination conducted pursuant to C.R.C.P. 35(a) is in reality a litigation matter and because at trial a jury would more likely believe the testimony of a defense-oriented board-certified physician rather than the testimony
Page 1 2 3 4 5 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|