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State Ex Rel. Mapes v. District Court10/30/1991
e to apportion the amount of plaintiff's damage attributable to each factor.
In the event that the purposes for which Dr. Jarvis has treated plaintiff are unrelated to any damage claimed in the present lawsuit, then the District Court should enter a protective order sealing plaintiff's psychological records from the Havre Clinic and prohibiting further public disclosure by defendant.
III.
Is the plaintiff entitled to have an attorney present during any interview of the plaintiff conducted by a psychiatrist retained by the defendant?
This issue is controlled by Mohr v. District Court (1983), 202 Mont. 423, 660 P.2d 88. That case was also a personal injury action in which the defendant sought an examination of the plaintiff pursuant to Rule 35, M.R.Civ.P. The plaintiff's attorney in that case also requested an opportunity to be present during the examination and the trial court in that case also denied that motion. In that case, as in this case, we issued a writ of supervisory control. The only difference between that case and this case is that in Mohr, the defendant sought a physical examination, whereas, in this case, defendant has requested a psychiatric examination. However, the reason for which we granted supervisory control and concluded that plaintiff had a right to have his attorney present during at least the history-taking part of the examination, is also applicable in this case. We held that:
"Courts have recognized the possibility that whenever a doctor is selected by one party to conduct a physical examination of another party, the doctor may ask improper questions. A lay person should not, without the assistance of counsel, be expected to evaluate the propriety of every question. Therefore, the rule developed which permits a party undergoing a court-ordered examination to have the protection and assistance of counsel at this examination. Sharff v. Superior Court (1955), 44 Cal.2d 508, 282 P.2d 896; Williams v. Chattanooga Iron Works (1915), 131 Tenn. 683, 176 S.W. 1031. In fact, the common law rule permits a party to have his attorney present at any court-ordered physical examination. See 64 A.L.R.2d 497, 501, § 5. This rule is designed to insure that a party can protect his rights to refrain from making any statements or admissions that may be adverse to his position." See generally, 64 A.L.R.2d § 497. Mohr, 660 P.2d at 88-89.
In response to concern about potential abuses from the attendance by an attorney at the history taking part of a physical examination, we stated that:
"And, if an attorney becomes disruptive during the history taking part of an examination, the trial court may take steps under Rule 37, M.R.Civ.P., including sanctions, for failure to cooperate in the discovery process."
Mohr, 660 P.2d at 89.
The interest which this Court sought to protect by permitting plaintiff's attorney to attend the history taking part of a physical examination is identical to the interest of a plaintiff in having an attorney present at the interview portion of a psychiatric examination. A psychiatric examination is particularly invasive of an individual's right to privacy. It is an extraordinary form of discovery which is permitted under Rule 35 only when the plaintiff's mental condition is in controversy, and then only when good cause has been shown. The risk of improper questions and the need to protect a party's rights are as great or greater under these circumstances as in a medical examination. While it is understandable that the psychiatrist retained by defendant would prefer to examine a totally uninhibited plaintiff, the psychiatric examination shoul
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