DiGiacinto v. Obelinas

38 Pa. D. & C.5th 72
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedApril 17, 2014
DocketNo. 09 CV 8058
StatusPublished
Cited by1 cases

This text of 38 Pa. D. & C.5th 72 (DiGiacinto v. Obelinas) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiGiacinto v. Obelinas, 38 Pa. D. & C.5th 72 (Pa. Super. Ct. 2014).

Opinion

NEALON, J.,

The plaintiff in this personal injury action has filed a de novo appeal of the special discovery master’s ruling under Pa.R.C.P. 4010 requiring him to submit to two physical examinations by different physicians chosen by the defense. The discovery master found that the defense had established “good cause” for separate examinations by distinct medical specialists since plaintiff’s cervical disc injury and bilateral carpal tunnel syndrome allegedly [74]*74involve conditions that are treated by different specialists. Plaintiff argues that his injuries are orthopedic in nature and can be properly evaluated by a single physician who conducts one physical examination on behalf of the defense.

Cervical disc injuries and carpal tunnel syndrome are not the exclusive domain of distinct medical disciplines and do not necessitate independent assessments by different specialists. The defense may retain either an orthopedic surgeon or a neurosurgeon to perform a single examination of plaintiff and effectively evaluate his cervical disc and carpal tunnel injuries in the process. The fact that plaintiff has received treatment for those injuries from two separate orthopedic surgeons is of no consequence and does not warrant subjecting plaintiff to the burden of two examinations under Rule 4010. Consequently, plaintiff’s de novo appeal will be granted and the defense request to compel plaintiff to submit to two medical examinations by different physicians will be denied.

I. FACTUAL BACKGROUND

On December 10,2007, plaintiff, Thomas F. DiGiacinto (“DiGiacinto”), was involved in a motor vehicle accident with defendant, Ralph C. Obelinas (“Obelinas”), as both parties were travelling in a southerly direction on Route 476, Montgomery County. (Docket entry no.5 at ¶¶ 4-5; Docket entry no.8 at ¶¶ 4-5). At the time of the accident, Obelinas was acting within the course and scope of his employment with defendant, Nivert Metal Supply, Inc. (“Nivert”). (Id. at ¶¶ 2-3). DiGiacinto filed suit against Obelinas and Nivert seeking to recover economic and noneconomic damages for “severe bodily injuries, including, but not limited to, neck and left shoulder injuries” causing “great mental anguish and physical [75]*75pain.” (Docket entry no.5 at ¶¶ 10-12).

According to the medical records that have been produced during discovery, DiGiacinto was originally treated by Neal A. Stansbury, M.D., of Valley Sports & Arthritis Surgeons (“VSAS”), for his accident-related orthopedic injuries. Dr. Stansbury initially diagnosed DiGiacinto with “left shoulder strain, aggravation of pre-existing degenerative disc disease and carpal tunnel syndrome.” (Docket entry no. 31 at ¶¶ 7, 12; Docket entry no. 32 at ¶¶ 7,12 & exhibits A, D). Dr. Stansbuiy provided ongoing treatment to DiGiacinto for his left shoulder and bilateral wrist complaints, but referred him to one of his twelve VSAS partners, Amir H. Fayyazi, M.D., for evaluation of his cervical symptoms. (Id). Dr. Stansbury performed a right carpal tunnel release on DiGiacinto in April 2008 and a left carpal tunnel release in June 2008. (Id. at Exhibit D).

Dr. Fayyazi diagnosed DiGiacinto’s cervical injury as “an aggravation of a pre-existing cervical degenerative disc disease” causing “nerve root compression.” (Id. at ¶¶ 9, 11 & exhibit C). On July 31, 2008, Dr. Fayyazi performed an “anterior cervical discectomy and fusion at [the] C3-4” vertebral level “for treatment of C3-4 nerve root compression.” (Id. at p. 3). In addition, DiGiacinto has been diagnosed with accident-related depression for which he has received psychiatric treatment. (Docket entry no. 31 at ¶ 6; Docket entry no. 32 at ¶6).

Defense counsel sought to schedule physical and mental examinations of DiGiacinto pursuant to Pa.R.C.P. 4010, and forwarded a letter to DiGiacinto’s counsel requesting his concurrence with the scheduling of three such examinations: (1) a physical examination by one physician “to address the carpal tunnel issues;” [76]*76(2) “[a] second examination...with a different physician to address the alleged cervical spine issues;” and (3) a third examination “to address any psychological/psychiatric issues.” (Docket entry no. 31 at ¶17; docket entry no. 32 at ¶ 17 & exhibit A). DiGiacinto has agreed, through his counsel, to submit to a “mental examination” under Rule 4010 in connection with his depression claim, but has objected to two “physical examinations” by separate physicians for his cervical, left shoulder and carpal tunnel injuries on the grounds that those “conditions are orthopedic in nature” and can be evaluated by the same physician. (Docket entry no. 31 at ¶¶6, 23; docket entry no. 32 at ¶¶ 6, 23 & exhibit B). Obelinas presented a “motion to compel independent medical examinations” to the special discovery master, who granted that motion and ordered DiGiacinto to submit to one “medical examination related to his alleged cervical spine injuries” to “be performed by a medical professional of defendants’ choosing,” and to present himself to a separate “medical professional of defendants’ choosing” in order to undergo a second “medical examination related to his general orthopedic issues involving allegations of bilateral carpal tunnel and left shoulder complaints.”1 (Docket entry no. 32 atpp. 1-2).

DiGiacinto filed a de novo appeal of the discovery master’s order directing him to submit to two medical examinations with respect to his cervical, left shoulder and carpal tunnel injuries. (Docket entry no. 33). Noting that Rule 4010(a)(3) empowers a court to order a party to submit to a physical or mental examination “only on [77]*77motion for good cause shown,” DiGiacinto maintains that the defense has not demonstrated good cause for multiple medical examinations “[mjerely because [DiGiacinto] had surgeries performed by two different orthopedic surgeons” in the same practice group. (Docket entry no. 38 at p. 3). He posits that “[t]here is absolutely no reason why a single orthopedic [examiner] cannot address both orthopedic injuries in this case.” (Id. at p. 9). DiGiacinto further submits that Rule 4010 contemplates only a single examination “as a per se rule,” and that “extrapolating expansion of principles which would result in additional or more extensive invasions of [DiGiacinto’s] bodily privacy” is not warranted. (Id. at p. 14).

In support of their request for two physical examinations of DiGiacinto under Rule 4010, Obelinas and Nivert argue that “[bjecause [DiGiacinto] required two separate and distinct specialists to address the carpal tunnel and cervical spine issues, [Obelinas and Nivert] should be permitted an equal and fair opportunity to address the same allegations in the same fashion.” (Docket entry no. 36 at p. 8). Obelinas and Nivert assert that they should be allowed to retain separate medical witnesses to address those orthopedic injuries, and reason that “[t]o limit the defendants to one physical injury examination would require the defendants to locate one medical expert who is appropriately qualified in both carpal tunnel surgeries and cervical spine surgeries.” (Id. at p. 10). Following the completion of oral argument on April 7,2014, DiGiacinto’s discovery appeal became ripe for disposition.

II. DISCUSSION

(A) MEDICAL EXAMINATION CRITERIA UNDER Pa.R.C.P. 4010

Pennsylvania Rule of Civil Procedure 4010(a) [78]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sayles v. Allstate Insurance Co.
260 F. Supp. 3d 427 (M.D. Pennsylvania, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
38 Pa. D. & C.5th 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digiacinto-v-obelinas-pactcompllackaw-2014.