Tentative Rulings

Case Number: ****3482    Hearing Date: October 30, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

BACKGROUND

Plaintiff Shohreh Rashtian (“Plaintiff”) filed this action following a motor vehicle collision with Defendant Samuel Swan (“Defendant”). Now, Defendant seeks an order compelling Plaintiff to submit to a physical examination with Jerry Sebag, M.D. (“Dr. Sebag”). Plaintiff opposes the motion, which is granted in part and denied in part.

Legal Standard

When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff. (Code Civ. Proc., ;; 2032.020, 2032.220.) A defendant is permitted to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., ; 2032.220, subd. (a).)

DISCUSSION

Plaintiff contends that she suffered a partial vitreous detachment and retinal hole as a result of the underlying accident. Accordingly, Defendant moves to compel Plaintiff to submit to an examination by Dr. Sebag, who is an ophthalmologist. Defendant is entitled to an examination. However, the proposed scope of the examination violates Code of Civil Procedure section 2032.220(a)(1), which prohibits any medical examination with “any diagnostic test or procedure that is painful, protracted, or intrusive.” (Code Civ. Proc., ; 2032.220, subd. (a)(1).)

In opposition to the motion, Plaintiff has submitted a declaration from Swaraj Bose, M.D. (“Dr. Bose”), who is an ophthalmologist and one of Plaintiff’s treating physicians. Dr. Bose states that the fundus photography that Dr. Sebag proposes to perform poses a risk of causing damage to Plaintiff’s retina. (Declaration of Swaraj Bose, M.D., ¶ 7.) Likewise, Dr. Bose states that the fluorescein angiography would require Plaintiff to undergo injections which may damage to her retina. (Id., ¶ 8.) Dr. Bose further states that the AVISO ultrasound that Dr. Sebag proposes to perform is not FDA approved and can cause cavitation in the tissue, with unknown long-term impacts. (Id., ¶ 9.) Finally, Dr. Bose states that the OPTOS/SLO is not FDA approved, and is not a standard diagnostic device for Plaintiff’s injuries. (Id., ¶ 10.) Plaintiff also relies on the deposition testimony of Dr. Galareh Dana (“Dr. Dana”), formerly known as Dr. Galareh Abedi, another of Plaintiff’s treating physicians. Dr. Dana recommends against any testing that is not medically necessary due to Plaintiff’s condition and corroborates Dr. Bose’s view that certain tests may harm Plaintiff. (Declaration of P. Christopher Ardalan, Exh. #3, at pp. 52-56.

In support of his reply brief, Defendant proffers a declaration from Dr. Bose stating: (1) Fundus photography does not involve intense light exposure and will not damage Plaintiff’s eyes; (2) Flourescein angiography “is a routine test performed on a daily basis” and has “excellent safety and efficacy;” (3) AVISO ultrasound is FDA approved and has “excellent safety and efficacy;” and (4) the OPTOS/SLO takes two minutes per eye and only requires Plaintiff to click a button when she sees a light. (Declaration of Jerry Sebag, ¶¶ 5-8.)

Plaintiff has satisfied her burden of establishing that certain tests are prohibited under section 2032.220(a)(1). Not only does Plaintiff proffer two ophthalmologists, neither is a retained expert relying on Plaintiff’s counsel for future business. Both believe there is some risk of harm, and Dr. Sebag’s declaration does not provide comfort because it does not eliminate this possibility. Therefore, Defendant’s motion is denied without prejudice to Defendant re-noticing a medical examination without any tests that violate section 2032.220(a)(1).

CONCLUSION AND ORDER

Defendant’s motion is granted in part and denied in part. Defendant is entitled to a medical examination of Plaintiff, which shall occur within thirty (30) days of notice. However, Defendant is not entitled to conduct any test that is painful or risks further harm to Plaintiff, per Code of Civil Procedure section 2032.220(a)(1). Nor may Defendant conduct any test that is not approved by the FDA. Specifically, the examination may not include fundus photograph, fluorescein angiography, an AVISO ultrasound, or the OPTOS/SLO test. Defendant shall provide notice and file proof of such with the Court.

DATED: October 30, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court