Langfeldt-Haaland v. Saupe Enterprises, Inc. , 768 P.2d 1144 ( 1989 )

OPINION

MATTHEWS, Chief Justice.

This petition raises the question whether an attorney for a plaintiff in a personal injury case is entitled to attend or tape record a Civil Rule 35¹ medical examination.

Svend Langfeldt-Haaland sued Saupe Enterprises to recover for personal injuries sustained in an automobile accident. Pursuant to Civil Rule 35, Saupe moved for an order requiring that Svend submit to a physical examination by a physician selected by Saupe. Svend did not object, but asserted rights to record the exam and to have his attorney present. The court ordered Svend to submit to the examination without benefit of counsel or tape recording. We granted Svend’s petition for review.

Civil Rule 35(a) provides in part:

Order for Examination. When the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

The person examined is entitled to receive a written report of the examination. Civil Rule 35(b).

We have never addressed the question whether a party in a civil action has the right to have his attorney present during an examination by a physician hired by his opponent. Other courts have done so, with widely divergent results.

In California, a party compelled to submit to a physical examination is entitled to have an attorney present.² Moreover, either party is entitled to request the presence of a court reporter.³ The fact that a court reporter is present does not preclude the attendance of plaintiffs attorney.⁴ However, the party has no right to his attorney’s presence during a psychiatric examination.⁵

Florida, New York, and Washington permit an attorney to attend both physical and psychiatric examinations as a matter of course.⁶ In Montana, an attorney has the right to be present while a physician takes his client’s medical history, but not during the physical examination.⁷ In Oregon and Wisconsin, the burden is on the injured plaintiff to show good cause justifying the attorney’s presence.⁸ The federal rule, followed by several states,⁹ is that the plaintiff’s attorney may not attend an examination.¹⁰

The courts which do not permit attorney attendance reason that ethical problems may arise because the attorney may be called as a witness for his client.¹¹ Moreover, they wish to divest the examination of any adversary character.¹² The exami-nee is protected because he has access to the doctor’s written report, and may depose the doctor and object to inadmissible evidence during trial.¹³ Some courts also note that physicians may refuse to perform an examination in the presence of an attorney, that the attorney is likely to interfere, and that the patient’s reactions may be skewed, rendering the examination useless.¹⁴

Those courts which permit an attorney to be present generally reason that the physician should be prevented from making inquiries beyond the legitimate scope of the exam, thus transforming the exam into a sort of deposition.¹⁵ Moreover, the attorney’s presence may aid in the eventual cross-examination of the physician.¹⁶ The attorney need never be called as a witness for his client if the examination is tape recorded.¹⁷ These courts refuse to presume that the attorney will interfere with the examination and recognize that the courts have the authority to deal with any actual interference.¹⁸

In our view, those cases which allow the examinee’s attorney to be present are the more persuasive. The Rule 35 examination is part of the litigation process, often a critical part. Parties are, in general, entitled to the protection and advice of counsel when they enter the litigation arena. An attorney’s protection and advice may be needed in the context of a Rule 35 examination, and we see no good reason why it should not be available.

In Houston v. State, 602 P.2d 784, 792-96 (Alaska 1979), we held that a criminal defendant has the right to have his attorney present at a psychiatric examination conducted under a court order requested by the prosecution. This right is part of the right to counsel in criminal cases expressed in article I, section 11 of the Alaska Constitution.¹⁹ Id. at 795.

Although we did not delineate the precise function of counsel at the examination, we expressed our belief that defense counsel’s role would generally be passive in nature. Id. at 796 n. 23. We relied in part on the decision in Lee v. County Court,²⁰ wherein the New York Court of Appeals explained the passive function of counsel at a psychiatric examination:

[T]he function of counsel is limited to that of an observer_ [T]he defense attorney may take notes and save [his] comments or objections for the trial and cross-examination of the examining psychiatrist.

However, we also cited with approval two Oregon cases which anticipated more active participation by counsel, namely, advising the client not to answer potentially incriminating questions posed by the psychiatrist.²¹

Houston supports, by analogy, our conclusion that plaintiff’s counsel in a civil case should have the right to attend a physical, or psychiatric, examination of his client in several respects. First, there is a constitutional right to counsel in civil cases arising from the due process clause.²² We recognize that the right to counsel in civil cases is not co-extensive with the right to counsel in criminal prosecutions,²³ but in the area of compelled examinations we see no reason to draw a distinction. Second, counsel may observe shortcomings and improprieties in an examination which can be brought out during cross-examination at either a civil or criminal trial. Third, although observation may be the primary role of counsel in both criminal and civil cases, counsel may on occasion properly object to questions concerning privileged information. There are privileges which may be invaded in civil as well as in criminal cases. Thus the reasons for allowing counsel to be present in a criminal case which we accepted in Houston also generally apply in civil cases.

We align Alaska with those authorities which allow plaintiffs counsel to attend and record, as a matter of course, court-ordered medical examinations in civil cases.²⁴ The trial courts retain authority to enter appropriate protective orders under Civil Rule 26(c). The question whether defense counsel should also be allowed to attend the examination was not taken on review, and we express no opinion on this issue.

The order of the superior court requiring petitioner to submit to an unrecorded medical examination without the presence of counsel is REVERSED.

1 . Alaska R.Civ.P. 35.

2 . Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 897 (1955).

3 . Gonzi v. Superior Court, 51 Cal.2d 586, 335 P.2d 97, 99 (1959).

4 . Munoz v. Superior Court, 26 Cal.App.3d 643, 102 Cal.Rptr. 686, 687 (1972).

5 . Edwards v. Superior Court, 16 Cal.3d 905, 130 Cal.Rptr. 14, 549 P.2d 846, 848-50 (1976).

6 . Bartell v. McCarrick, 498 So.2d 1378, 1379 (Fla.App.1986); Reardon v. Port Auth., 132 Misc.2d 212, 503 N.Y.S.2d 233, 234-35 (1986); Tietjen v. Department of Labor & Indus., 13 Wash.App. 86, 534 P.2d 151, 153-54 (1975).

7 . Mohr v. District Court, 202 Mont. 423, 660 P.2d 88, 88 (1983).

8 . Pemberton v. Bennett, 234 Or. 285, 381 P.2d 705, 706-07 (1963); Whanger v. American Family Mut. Ins. Co., 58 Wis.2d 461, 207 N.W.2d 74, 79 (1973).

9 . E.g., Pedro v. Glenn, 8 Ariz.App. 332, 446 P.2d 31, 33-34 (1968).

10 . McDaniel v. Toledo, P. & W. R.R., 97 F.R.D. 525, 526 (C.D.Ill.1983); Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595, 597-98 (D.Md.1960).

11 . McDaniel, 97 F.R.D. at 526; see Alaska Code of Professional Responsibility DR 5-102 (attorney shall withdraw if he ought to be called as a witness for his client).

12 . McDaniel, 97 F.R.D. at 526; Pemberton, 381 P.2d at 706; Whanger, 207 N.W.2d at 79.

13 . Warrick v. Brode, 46 F.R.D. 427, 428 (D.Del.1969); Dziwanoski, 26 F.R.D. at 598; Pedro, 446 P.2d at 33; Edwards, 549 P.2d at 850 (psychiatric exam); Mohr, 660 P.2d at 89.

14 . Pedro, 446 P.2d at 33 (psychiatric exam); Edwards, 549 P.2d at 849 (same); Pemberton, 381 P.2d at 706.

15 . Sharff, 282 P.2d at 897; Reardon, 503 N.Y.S. 2d at 234-35; Steele v. True Temper Corp., 174 N.E.2d 298, 301-02 (Ohio Common Pleas), appeal dismissed, 193 N.E.2d 196 (Ohio App.1961); Tietjen, 534 P.2d at 154.

16 . Reardon, 503 N.Y.S.2d at 235; Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612, 613 (1982).

17 . Gonzi, 335 P.2d at 99.

18 . Reardon, 503 N.Y.S.2d at 235; Jakubowski, 450 N.Y.S.2d at 614; Steele, 174 N.E.2d at 302; Tietjen, 534 P.2d at 154.

19 . Alaska Const, art. I, § 11 provides:

In all criminal prosecutions, the accused ... is entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses when the proof is evident or the presumption great; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

(Emphasis added).

20 . 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, 459, cert. denied, 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 50 (1971), quoted in Houston, 602 P.2d at 794.

21 . 602 P.2d at 793-94 & n. 19 (citing State v. Corbin, 15 Or.App. 536, 516 P.2d 1314 (1973) and Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968)); see also Jakubowski, 450 N.Y.S.2d at 613-14.

22 . Alaska Const, art. I, § 7 provides:

No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.

23 . Article I, section 11 applies only to "criminal prosecutions.” McCracken v. State, 518 P.2d 85, 90 (Alaska 1974). Thus, an indigent person has no right to appointed counsel in most civil cases, although certain exceptions exist in the areas of termination of parental rights, V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983); child custody, Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979); paternity suits, Reynolds v. Kimmons, 569 P.2d 799, 803 (Alaska 1977); and civil contempt proceedings, Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).

24 . If the client does not wish his or her attorney to attend all or part of an examination, these wishes must of course govern.