Reuter v. Superior Court

• Decision Date: 22 May 1979
• Citation: 155 Cal.Rptr. 525,93 Cal.App.3d 332
• Court: California Court of Appeals Court of Appeals
• Parties: Frances Olga REUTER, etc., et al., Petitioners, v. SUPERIOR COURT etc., COUNTY OF SAN DIEGO, Respondent; TAG ENTERPRISES, Real Party in Interest. Civ. 18562.

Page 525

155 Cal.Rptr. 525

93 Cal.App.3d 332

Frances Olga REUTER, etc., et al., Petitioners, v. SUPERIOR COURT etc., COUNTY OF SAN DIEGO, Respondent TAG ENTERPRISES, Real Party in Interest.

Civ. 18562.

Court of Appeal, Fourth District, Division 1, California.

May 22, 1979.

Popko & Cornblum and Hugh D. McLean, San Diego, for petitioners.

No appearance for respondent.

McInnis, Fitzgerald, Rees & Sharkey and John F. McGuire, San Diego, for real party in interest.

COLOGNE, Associate Justice.

Proceeding in mandamus to compel the Superior Court of San Diego County to vacate its order requiring petitioners to submit to testing by a psychologist. Writ granted in part and denied in part.

Petitioners Frances Reuter (mother) and Albrecht Reuter II (son) are plaintiffs in an action pending before the respondent court. The lawsuit arises from an automobile accident in which the son was injured and his father killed. Real party in interest is a defendant in that action.

The mother serves in three capacities in the suit: individually in her cause of action for wrongful death (Code Civ.Proc., § 377); as executrix of the estate of her husband (Prob.Code, § 573); and as guardian ad litem for her son in his cause of action for personal injuries.

Real party moved for and received an order from respondent pursuant to Code of Civil Procedure ¹ section 2032 compelling: (a) the mother to submit to a battery of psychological tests to be administered by a psychologist, and (b) the son to submit to these same tests and additionally submit to interviews with a child psychiatrist.

Petitioners claim respondent abused its discretion in granting these examinations on the grounds that a psychologist is not a "physician" as required by section 2032 and the mother's mental state is not "in controversy." Section 2032 is set forth in the margin. ²

Mandamus has long been available "to prevent improper discovery proceedings including physical examinations." (Harabedian v. Superior Court, 195 Cal.App.2d 26, 30, 15 Cal.Rptr. 420, 422, and cases cited.) ³ The Supreme Court, however, has limited the scope of review in discovery matters generally. The Court noted in Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 185-186, fn. 4, 23 Cal.Rptr. 375, 378 n. 4, 373 P.2d 439, 442, n. 4, "(T)he prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases."

An exception to this limitation on review by writ is found in Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 171, fn. 11, 84 Cal.Rptr. 718, 725 n. 11, 465 P.2d 854, 861 n. 11, in cases in which "an order granting discovery violates a privilege (citation) or intrudes upon a constitutionally secured right to privacy."

The present case is appropriate for writ review since we have found no cases, nor have counsel directed us to any, which specify the guidelines to be used in this type of situation, and the mother has alleged her right of privacy is being violated by the grant of discovery.

In construing statutes:

"We begin with the fundamental rule that a court 'should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' (Citation.) In determining such intent '(t)he court turns first to the words themselves for the answer.' (Citation.) We are required to give effect to statutes 'according to the usual, ordinary import of the language employed in framing them.' (Citations.) . . . 'When used in a statute (words) must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.' (Citations.)" (Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 148-149, 514 P.2d 1224, 1228-1229.)

Discovery statutes in particular are to be construed liberally in favor of disclosure (Harabedian v. Superior Court, supra, 195 Cal.App.2d 26, 31, 15 Cal.Rptr. 420, and cases cited).

As section 2032 was substantially based upon Rule 35 of the Federal Rules of Civil Procedure (28 U.S.C.) as originally executed, ⁴ (Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 375, 15 Cal.Rptr. 90, 364 P.2d 266), we note a further rule of construction: "When legislation has been judicially construed and a subsequent statute on the same or an analogous subject is framed in the identical language, it will ordinarily be presumed that the Legislature intended that the language as used in the later enactment would be given a like interpretation. This rule is applicable to state statutes which are patterned after federal statutes." (Agricultural Labor Relations Bd. v. Superior Court, 16 Cal.3d 392, 414, 128 Cal.Rptr. 183, 197, 546 P.2d 687, 701, citing Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, 54 Cal.2d 684, 688-689, 8 Cal.Rptr. 1, 355 P.2d 905).

We will therefore occasionally look for guidance to federal precedent interpreting Rule 35.

Section 2032 authorizes the court to order a party whose mental state is in controversy to submit to a mental examination by a "physician." The inherent power of our courts to order a physical examination of a plaintiff in a personal injury case was recognized long before section 2032 was passed in the case of Johnston v. Southern Pacific Co., 150 Cal. 535, 89 P. 348. The statute codified the authority and enlarged the "scope of the examination" (Harabedian v. Superior Court, supra, 195 Cal.App.2d 26, at p. 31, 15 Cal.Rptr. 420) by adding agents of a party, and persons in the custody or under the legal control of parties, to the category of persons who could be compelled to submit to the examinations. Neither section 2032 nor case authority allow the examination to be conducted by someone other than a physician. ⁵

The Code of Civil Procedure does not contain its own definition of physician, so we must look elsewhere. Business and Professions Code section 4033 defines a "physician" as "any person holding a valid and unrevoked physician's and surgeon's certificate or certificate to practice medicine and surgery, issued by the Board of Medical Examiners or the Board of Osteopathic Examiners of this State . . . ." In a licensing sense, a "physician" is one who possesses this physician's and surgeon's certificate. As the Attorney General has aptly pointed out, "for purposes not confined to the Medical Practice Act, any practitioner of the healing arts may be considered to be a 'physician,' depending upon the context in which the term is used." (57 Ops.Cal.Atty.Gen. 79, 80.) We agree this is true but believe the purposes of the statute and the best interest of the plaintiff and defendant are served by limiting the term "physician" in section 2032 to mean a person licensed as a physician and surgeon under the Medical Practice Act.

The party being examined is interested in the examination being performed competently and safely. The party requesting the examination wants a thorough and competent diagnosis. Both parties should desire an accurate appraisal of the damages suffered. The state also has an interest in medical procedure being performed with insured safety (see Roe v. Wade, 410 U.S. 113, 150, 93 S.Ct. 705, 35 L.Ed.2d 147). Of all the practitioners of healing arts, the licensed physician has plenary authority to practice medicine. (See 30 Ops.Cal.Atty.Gen. 313.) His practice is not limited to any particular part of the body. He is the practitioner most likely to adequately appraise all of the patient's injuries.

We believe the common meaning of "physician" as generally used applies only to the licensed physician and surgeon. Without any evidence to demonstrate the Legislature intended the word "physician" to have a meaning other than duly licensed physician, we hold that is what it means for purposes of section 2032.

As applied specifically to mental examinations, although all holders of a physician's and surgeon's certificate may treat mental conditions (Bus. & Prof.Code, § 2137), a psychiatrist is a physician who specializes in mental, emotional or behavioral disorders. (See Webster's New Internat.Dict. (3d ed. 1968) p. 1832; see also 2 Schmidt, Attorney's Dictionary of Medicine (1975), p. P-167.) Thus, compelling a mental examination by a psychiatrist is proper under section 2032.

A psychologist, however, is not licensed as a physician and surgeon. His license requirement is set out in Business and Professions Code section 2903, which is in Chapter 6.6 of Division 2 of the code. A psychologist is thus not a "physician" as defined under section 2032, and may not conduct a mental examination compelled under that section.

This does not, however, fully answer the question before us. The motion to compel the examination was supported by a declaration of a child psychiatrist to the effect that the testing by a psychologist is necessary to complete his examination of the son. In this circumstance, the capacity of the psychologist is to provide data for the psychiatrist to use. His position is analogous to that of an x-ray technician taking x-rays for a physician to examine or a medical technician taking a patient's blood pressure and reporting the findings to the doctor.

As the Legislature has observed in relation to one type of medical specialist, the nurse, "It is the legislative intent also to recognize the existence of overlapping functions between physicians and registered nurses and to permit additional sharing of functions within organized health care systems . . . " (Bus. & Prof. Code, § 2725.) To prevent a physician from delegating certain duties to competent specialists in accordance with accepted medical practices would be to deny the reality of the modern medical profession.

In the mental health area, the Legislature has recently recognized that psychologists are competent to make determinations in several statutory areas which previously had required...