Pena v. Troup

163 F.R.D. 352, 1995 U.S. Dist. LEXIS 20623, 1995 WL 569600
CourtDistrict Court, D. Colorado
DecidedJune 22, 1995
DocketCiv. A. No. 94-M-1393
StatusPublished
Cited by3 cases

This text of 163 F.R.D. 352 (Pena v. Troup) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pena v. Troup, 163 F.R.D. 352, 1995 U.S. Dist. LEXIS 20623, 1995 WL 569600 (D. Colo. 1995).

Opinion

ORDER

ABRAM, United States Magistrate Judge.

This matter comes before the Court regarding Defendant’s Motion for Independent Medical Examination, Defendant’s Motion for Extension of Time to Endorse Expert Witnesses to Testify Regarding Causation, and Plaintiffs’ Motion for Protective Order. Magistrate Judge D.E. Abram hereby makes the following orders.

I. FACTS

Plaintiffs brought this action claiming that Raquel Pena incurred severe neurological injuries and brain damage as a result of Defendant’s negligence during her delivery.

On January 5,1995, a Magnetic Resonance Imaging scan (“MRI”) was attempted on Raquel. Because Raquel could not remain still during the MRI, her movement obscured the image and prevented an accurate assessment of the study. Subsequently, Defendant filed this motion requesting the Court to order that Raquel submit to another MRI, this time under sedation or general anesthesia, as determined by the anesthesiologist monitoring the scan. Defendant argues that, with the aid of an MRI, a specially trained physician may be able to tell from the pattern of brain injury whether the damage occurred at birth, as Plaintiffs allege, or during the pregnancy from causes unrelated to the care given by Defendant.

Plaintiffs object to Defendant’s request on the grounds that the procedure poses substantial risks of harm to Raquel and because Defendant has failed to sufficiently state good cause for the procedure.

II. RELEVANT LAW

Upon motion for good cause shown, the court may order a party—whose mental or physical condition is at issue in a case—to submit to a physical or mental examination. Fed.R.Civ.P. 35(a). “In determining what kinds of examinations to authorize, the court must balance the desire to insure the safety and freedom from pain of the party to be examined against the need for the facts in the interest of truth and justice.” 8A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2235, at 494 (2d ed. 1994).

Here, the Court must decide whether to order Plaintiffs to submit to a procedure which they deem to be unsafe. Although this is a question of first impression in this court, several other courts have addressed the issue. These courts have adopted the “burden-shifting” approach articulated in Lefkowitz v. Nassau County Medical Center, 94 A.D.2d 18, 462 N.Y.S.2d 903 (1983). In Lefkowitz, plaintiff claimed that she became infertile because of defendant-physician’s alleged negligence. Defendants requested that plaintiff submit to medical testing which was potentially dangerous. Id. 462 N.Y.S.2d at 905-906. In resolving this dilemma, the court adopted a burden-shifting approach, requiring plaintiff to show that the proposed test is prima facie potentially dangerous. Id. 462 N.Y.S.2d at 906. Once plaintiff satisfies this initial burden, the burden shifts to the party seeking the examination to demonstrate the need for the examination and its safety. Id. “Although the degree and type of proof necessary to show safety may vary from case to case, the seeking party generally is required to offer the affidavit of an expert or at least to cite from standard medical texts of which judicial notice could be taken.” Id. Because defendants had not supplied such documentation to the court in Lefkowitz, the court held that defendants failed to meet their burden. Id.

In Langelier v. Ford, 159 A.D.2d 851, 552 N.Y.S.2d 992 (3 Dept.1990), the New York court again applied the Lefkowitz test to facts analogous to the instant case. In Langelier, plaintiff sued the hospital where her son was born alleging malpractice in the failure to properly and timely diagnose and treat the infant. Id. 552 N.Y.S.2d at 993. Defendant moved for an order compelling plaintiff to submit to an MRI under sedation, [354]*354and plaintiff objected. First, the court determined that plaintiff met the initial burden of establishing a theoretical risk. Id. 552 N.Y.S.2d at 994. The court went on to conclude that, in light of expert testimony that the risk to plaintiff was minimal, the defendant met its burden. Therefore, plaintiff was ordered to submit to the MRI.

Another case from New York also bears similarity to the instant case. See Thomas v. John T. Mather Memorial Hosp., 162 A.D.2d 521, 556 N.Y.S.2d 720 (2 Dept.1990). In Thomas, defendants sought to compel the severely brain-damaged plaintiff to submit to ah MRI or a Computed Axial Tomography (“CAT”) scan while under sedation. Plaintiff sought a protective order on the ground that plaintiffs health would be endangered if he were compelled to submit to the scan while under sedation. Plaintiffs neurologist submitted an affidavit stating that “there is no medical reason or medical benefit for [the plaintiff] to undergo a C[A]T scan. Clearly anesthesia or sedation (including chloral hydrate) does represent a risk to [his] health.” Id. 556 N.Y.S.2d at 721. In turn, defendants established that the risk to plaintiff was minimal and that plaintiff had submitted to CAT scans while sedated on previous occasions without consequence. Id. The court ordered plaintiff to submit to the scan and explained its decision as follows:

Notwithstanding the plaintiffs assertions to the contrary, there is a need as well as a benefit to be derived from the CAT scan, since it may enhance the defendants’ ability to prepare a defense. Indeed, the functional utility of such an exam and its validity as a discovery device is not in dispute. We note, moreover, that the plaintiffs expert offered no details as to the manner in which chloral hydrate would be harmful to the plaintiff nor did he address the fact that the plaintiff apparently tolerated several prior CAT scans without incident. Id.

Other jurisdictions have employed analogous reasoning. On two occasions, Illinois has considered whether to compel plaintiff to submit to an MRI under sedation. In the first case, plaintiff claimed that, due to the negligence of defendant hospital and pediatricians, he suffered from brain damage allegedly sustained during his birth. Sarka v. Rush Presbyterian-St. Luke’s Med. Ctr., 207 Ill.App.3d 587, 152 Ill.Dec. 614, 615, 566 N.E.2d 301, 302 (1 Dist.1990), cert. denied, 139 Ill.2d 604, 159 Ill.Dec. 116, 575 N.E.2d 923 (1991). After an initial scan proved to be of poor quality because plaintiff could not remain still, defendant moved to compel plaintiff to undergo a second scan while under sedation. Plaintiff submitted affidavits from three physicians who described the risks associated with the procedure and agreed that “it is not medically justified nor reasonable to submit a child to such risks.” Id. 152 Ill.Dec. at 616-617, 566 N.E.2d at 304-305. Defendants’ expert stated that the risks associated with the procedure were minimal and that sedation was routinely used on children with seizure disorders. Id. Because defendants demonstrated that the risk was negligible and the procedure was routinely performed on children with seizures, the court compelled plaintiff to submit to the scan. Id. 152 Ill.Dec. at 620, 566 N.E.2d at 309.

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Cite This Page — Counsel Stack

Bluebook (online)
163 F.R.D. 352, 1995 U.S. Dist. LEXIS 20623, 1995 WL 569600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-troup-cod-1995.