California: Attorney Presence at Psychiatric Evaluations

California: Attorney Presence at Psychiatric Evaluations

In a November 9, 2010 published decision, the California Second District Court of Appeal has interpreted established case law with respect to the right of a plaintiff's attorney in a civil case to attend a psychiatric examination of their client.

In Toyota Motor Sales USA v. Superior Court (Braun), [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law], the plaintiff challenged the right of the Superior Court to make an order which limited the rights of his attorney to be present during all phases of a psychiatric examination.

Plaintiff Braun had sued Toyota alleging discrimination under FEHA and alleging emotional damages arising out of alleged sexual harassment and constructive discharge.

The defendant argued that plaintiff had put his psychological state in issue and prepared a motion for an independent medical evaluation under California Code of Civil Procedure §2032.310 [available to subscribers], which the trial court ordered. The court also permitted plaintiff's attorney to be present during the evaluation in an adjoining room in order to monitor the examination.

Defendant objected to the presence of plaintiff’s attorney alleging that it would compromise the integrity of the evaluation.  Both parties submitted published case law which came to different conclusions regarding the circumstances under which counsel may be present during a medical examination.  As this was a psychiatric examination, plaintiff contended his attorney should be present because the evaluation effectively allowed defendant to re-depose the plaintiff.  Toyota filed an ex parte motion to modify the initial order arguing that California law does not permit the presence of an attorney at a psychiatric examination except in rare and unusual circumstances, which plaintiff had not presented.

Despite plaintiff’s objection the court entertained defendant’s ex parte motion and modified its original order but only as to the date of the evaluation.  Toyota appealed, and the Court of Appeal issued a writ and order to show cause.

The Court of Appeal concluded that the trial court committed error in allowing plaintiff's attorney to be present during the evaluation.  Relying on the Supreme Court case of Edwards v. Superior Court (1976) 16 Cal.3d 905, [enhanced version available to subscribers] the Court held that plaintiff could not insist on his attorney's presence at the psychiatric examination.  In so doing, the court distinguished a psychiatric evaluation from other medical evaluations due to the nature of the personal interview necessary to ascertain the mental state of the plaintiff.

The Court of Appeal’s decision emphasized existing law that, unlike other medical evaluations, the presence of counsel at a psychiatric evaluation should be allowed only in "exceptional cases".

Medical Evaluations and Workers’ Compensation -

Labor Code §4052 [available to subscribers] allows injured workers to have a physician present at any evaluation required by their employer, at their own expense.  However this statutory right is rarely invoked.

There is no statutory right under the Labor Code for an employee's attorney to be present during any physical or mental examination of the employee in workers’ compensation cases.  However there have been isolated instances in which applicant attorneys have sought to be present at psychiatric evaluations.

If such a standard were to be challenged at the WCAB, it is likely that guidance from the civil courts would be followed and applicant attorneys would be barred from attending psychiatric evaluations of their clients.  Further, this case establishes precedent that a defendant that brings a successful motion to challenge the right of an applicant attorney to attend a psychiatric evaluation may be eligible to recover their costs for doing so as the Court ordered in the Braun case.

What this means for you -

If an employee requests to have their personal physician present at a medical evaluation, they are entitled to do so at their own expense.  They are not generally entitled to have their attorney present during any medical evaluation.  Furthermore the Braun case holds that they are not entitled to have their attorney present during a psychiatric examination except in "exceptional cases".  This would likely have to be the subject of a determination by the WCAB after written motion by either party to admit or exclude the attorney from the evaluation.

Note that injured workers do have the right to audiotape a defense psychiatric medical examination according to County of Alameda v. WCAB (Weems) [44 CCC 452 (W/D 1979)] [available to subscribers]. Presumably the WCAB would also permit an audio recording of an AME or PQME psychiatric examination.

It would not be inconsistent with the law to advise evaluating physicians, whether they are AME's, QME's or panel QME's that attorneys for injured workers should be excluded from medical evaluations, particularly psychiatric evaluations, in the absence of an order from the WCAB.

© Copyright 2010 Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.