When a defendant is facing a serious traumatic brain injury claim, a defense motion to compel the plaintiff to submit to a psychiatric mental examination should be expected.
A psychiatric examination should never be allowed. It is an invasion of privacy and an attempt to divert the focus from the responsibility for having caused a devastating physical injury and minimize a permanent injury caused by the defendant.
Below are recommendations for opposing a motion for a psychiatric exam and California case law on this issue.
In opposing the motion for a psychiatric exam, present declarations from treating doctors and forensic experts in neurology and neuropsychology that provide an overview of the major distinction between objective traumatic brain injuries and subjective psychiatric conditions and that specifically detail the plaintiff’s diagnosis as a survivor of traumatic brain damage.
Make sure you judge knows that while the mind and the brain are closely related, the mind is the product of the brain and physical injury to the brain is not a psychiatric condition to be treated with psychiatric therapy.
Psychiatry focuses on the diagnosis and treatment of subjective emotional and behavioral disorders, such as panic attacks, hallucinations, suicidal thoughts, feelings of hopelessness, sadness or anxiousness that persist, permeate and interfere with life. The key is that these feelings are not symptoms of a physical change in the brain. These feelings are dependent on an individual’s perception, personality and ability to respond to emotional challenges. Psychiatric patients are treated with psychotherapy to develop an understanding of their feelings and thinking and medications to treat anxiety and depression.
In comparison, traumatic brain injuries are objectively evaluated and diagnosed by neurologists and/or neuropsychologists.
A neurologist is trained to diagnose and treat disorders of the nervous system including the brain, muscles and nerves. Neurologists can identify objective brain damage using sophisticated brain mapping tests that identify localized areas of traumatic injury, 3T MRIs of the brain showing areas of increased signal density findings and digital EEG evoked potential testing revealing low amplitude or absent responses in the specific areas of the brain.
Neurologists collaborate with neuropsychologist who are trained to conduct a comprehensive battery of tests to evaluate cognitive or learning skills, i.e. the process of acquiring knowledge and understanding through thought, experience, and the senses. Testing can confirm the constellation of non-psychiatric neurological symptoms that are the hallmark of brain injury: extreme fatigue, sleeplessness, difficulty concentrating, loss of focus, short-term memory loss, frustration, anger, headaches, difficulty following instructions, studying, speech discrimination, and word finding, multitasking, and poor attention which cause anxiety, depression and changes in mood and personality.
Treatment of brain injuries requires the services of multiple therapists that is substantially different, and far removed, from what takes place in psychotherapy.
Initially, occupational therapistsprovide rehabilitation skills to help the patient perform physical tasks involving both gross and fine motor skills, as well as performing six activities of daily living: bathing, dressing, toileting, transferring, continence and feeding. Because speech deficits are a common disability for survivors, speech therapists are involved in evaluating and teaching speech, writing, reading and expression skills aimed at both comprehension and communication. They teach survivors how to learn. The goal is to help survivors identify techniques and use transferable skills to improve their ability to remember ideas. Vocational rehabilitation counsellors identify skills, aptitudes, and abilities that will help restore the patient to the world of work and evaluates the patients ability to follow instructions and social skills. Testing helps determine the survivors ability to learn, to make judgments and to evaluate productivity, punctuality, reaction time, distractibility and tolerance for frustration.
California law is protective of personal privacy and the pitfalls of a defense psychiatric examination are well recognized by statute and case law, which acknowledge that psychiatric mental examinations are not an independent search for truth and have the potential for harm because they are adversarial.
In Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d 1027, at 1033 the Court of Appeal noted that unlike expert witnesses appointed under Evidence Code section 730, the physician appointed to conduct a medical examination under Code of Civil Procedure section 2032 is not hired for the purpose of being impartial . . . .
In Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1135, it was acknowledged that examinations conducted pursuant to Code of Civil Procedure section 2032 are discovery tools that are conducted, “in a strictly adversarial context,” and that examining physicians owe the examinee “no duty of care.”
The legislature has established significant safeguards that must be in place for the use of mental examinations.
There is no requirement that a plaintiff automatically submit to a mental examination by a defendant’s retained expert.
Unlike virtually every other form of discovery, a party seeking to conduct a mental examination must first make a motion to the Court and demonstrate good cause for a specific examination before the examination can be ordered. As explained by the Supreme Court:
- Determining that the mental or physical condition of a party is in controversy is but the first step in our analysis. In contrast to more pedestrian discovery procedures, a mental or physical examination requires the discovering party to obtain a court order. The court may grant the motion only for good cause shown.
- Section 2036 defines a showing of ‘good cause’ as requiring that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee’s privacy interest by preventing an examination from becoming an annoying fishing expedition. While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.
Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; see also Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259.
See also Sporich v. Superior Court (2000) 77 Cal.App.4th 422:
- Code of Civil Procedure section 2032, subdivision (d) requires a good cause requirement to conduct a mental examination. [citation omitted] ‘The good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary.’ [citation omitted]
- The concept of good cause serves as a barrier to excessive and unwarranted intrusions. [citation omitted] Good cause is established by facts that ‘appear in the record as a demonstrable reality.’ [citation omitted] Mere speculation, standing alone, will not suffice. [citation omitted].
Sporich v. Superior Court, at 427-428, citing Vinson v. Superior Court, supra; Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 571.
In filing a personal injury lawsuit, a plaintiff waives his/her right to full constitutional privacy and implicit in making the claim is proving the injuries caused by the defendant.
The Supreme Court recognizes that, although there may be an implicit partial waiver of constitutional privacy rights when a person files suit, the scope of the waiver must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of private activities. Vinson v. Superior Court, at 842, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859 (1978).
An implicit waiver of a party’s constitutional rights encompasses discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit. Vinson v. Superior Court, at 842. “The patient is not obligated to sacrifice all privacy to seek redress for a specific . . . injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” Britt v. Superior Court (1978) 20 Cal.3d 844, 864.)
The burden is on the party seeking the constitutionally protected information to establish direct relevance that that is sufficient to overcome the person’s privacy rights. Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court, (1978) 20 Cal.3d 844 at 859-862.
Fishing expeditions are not allowed. Nor is an open-ended examination— as defendants commonly seek —permitted.
In Roberts v. Superior Court (1973) 9 Cal.3d 330, the Supreme Court reaffirmed that, “because of the potential encroachment upon constitutionally protected rights of privacy by the compelled disclosure of confidential communications between the patient and his psychotherapist . . . , trial courts should carefully control compelled disclosures in this area.” Roberts at 337. In that case the Supreme Court reversed the trial court’s order requiring the disclosure of plaintiff’s psychiatric records, holding that discovery of a plaintiff’s mental conditions is limited to “only those matters directly relevant to the nature of the specific ‘emotional or mental’ condition which the patient has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquiries.” Id., emphasis added, citing In re Lifschutz (1970) 2 Cal.3d 415, 431.
It is significant that the major decisions that are central statements of California law on psychiatric mental examinations were the result of a petition for extraordinary relief in the form of a writ of mandate or prohibition directed to the Superior Court to correct the error of a trial judge’s ruling.
Defendants have a heavy burden obtaining an order for a psychiatric exam. When TBI has been confirmed by neurologists or neuropsychologist, motions for defense psychiatric examinations should fail. When they do not, as can be seen by California case law on this issue, a writ of mandate is in order.
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