Simms v. MONTANA 18TH JUDICIAL DIST. COURT

• Decision Date: 21 April 2003
• Docket Number: No. 02-477.,02-477.
• Parties: Randall SIMMS and Carol Simms, Petitioners, v. MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, Gallatin County, Honorable Mike Salvagni, presiding, Respondent.
• Court: Montana Supreme Court

68 P.3d 678

2003 MT 89

315 Mont. 135

Randall SIMMS and Carol Simms, Petitioners, v. MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, Gallatin County, Honorable Mike Salvagni, presiding, Respondent.

No. 02-477.

Supreme Court of Montana.

Submitted September 17, 2002.

Decided April 21, 2003.

Geoffrey C. Angel, Angel Law firm, Bozeman, Montana, for Petitioners.

Hon. Mike Salvagni, District Judge, Bozeman, Montana, for Respondent Montana Eighteenth Judicial District Court.

John J. Russell, Lisa A. Speare, Brown Law Firm, Billings, Montana, for Respondent Dr. Charles Fritz.

Julie A. Lichte, Swandal, Douglass & Gilbert, P.C., Livingston, Montana, for Respondent Bozeman Deaconess Health Services. Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiffs, Randall and Carol Simms, filed a complaint in the District Court for the Eighteenth Judicial District in Gallatin County, in which they alleged that Randall was damaged by the professional negligence of the Defendants, Dr. Charles Fritz and Bozeman Deaconess Hospital. The Defendants filed a motion, pursuant to Rule 35, M.R.Civ.P., to compel Simms to submit to an independent medical examination by Dr. Jose Ochoa in Portland, Oregon. The District Court granted the motion over the Plaintiffs' objection. The Simms filed a Petition for a Writ of Supervisory Control with this Court and requested that we conclude that the District Court was proceeding pursuant to a mistake of law. We granted supervisory control.

¶ 2 The issues presented are as follows:

¶ 3 1. Are the facts and issues presented in this case appropriate for resolution by supervisory control?

¶ 4 2. Did the District Court abuse its discretion when it ordered Simms to submit to the independent medical examination?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On May 3, 1999, Randall Simms sustained a puncture wound to his arm while discarding broken glass at his place of employment. He went to the Bozeman Deaconess Hospital emergency room where he was evaluated and treated by Dr. Charles Fritz. Dr. Fritz diagnosed a "right forearm laceration, probable radial artery," closed it with two sutures and a pressure dressing, and discharged Simms from emergency care.

¶ 6 In the early morning hours of May 4, 1999, Simms returned to the emergency room because he was experiencing substantial pain and swelling in his right forearm. He was evaluated and treated by Dr. John Campbell. Dr. Campbell diagnosed compartment syndrome (the collection of blood in the soft tissues of an extremity) caused by bleeding from the lacerated radial artery of Simms' right forearm. He performed an emergency surgical procedure to relieve the pressure caused by the bleeding artery.

¶ 7 Subsequently, Simms developed what is known as reflex sympathetic distrophy (RSD) or complex regional pain syndrome (CRPS). CRPS is a condition that is clinically associated with pain, swelling, skin discoloration, and immobility. Simms alleges that his condition causes severe pain that prevents him from working, performing everyday tasks, pursuing recreational past-times, and that he suffers from depression as the result of his condition. He has received extensive treatment for pain management, including prescribed pain medication and two spinal stimulator implants.

¶ 8 The Simms filed a complaint against Dr. Fritz and Bozeman Deaconess Hospital for professional negligence in which they alleged that the Defendants' negligence caused Mr. Simms' current condition. They seek damages for physical injury, emotional distress and loss of consortium.

¶ 9 The Simms filed an expert witness disclosure, which listed numerous medical experts who were prepared to testify as to Mr. Simms' condition. Those who intended to testify about his condition formed their opinions based on observations made during actual treatment of Simms. Their combined testimony is intended to establish that Simms suffers from all of the clinical signs of CRPS and that the likely cause of the condition was compartment syndrome.

¶ 10 In response, the Defendants requested that Simms attend an independent medical examination, performed by Dr. Jose Ochoa, in Portland, Oregon. Ochoa is a neurology specialist at the Oregon Nerve Center who is known throughout the medical community for his unorthodox views on CRPS. He rarely acknowledges the presence of CRPS and diagnoses most cases as pseudoneurological disorders caused by unconscious hysterical conversion-somatization or malingering. Ochoa has on occasion acknowledged his reputation as a "hired gun." Consequently, Ochoa has become well known and sought out in the legal community as a doctor for hire to refute CRPS claims. ¶ 11 Simms refused to cooperate. In response, the Defendants filed a motion to compel him to submit to the examination. Ochoa's affidavit, which explained the intended procedure for the IME, was attached to the Defendants' motion.

¶ 12 The proposed medical examination would require that Simms travel to Portland, Oregon, for three days. The examination would include a telethermography, a quantitative sensory thermal test, nerve conduction studies, electromyography, somatosensory evoked potentials, a diagnostic local anesthetic block, and an intravenous phentolamine sympathetic block. The examination would also include psychological evaluations and a medical history evaluation by members of Ochoa's "team." No treatment would be provided by Ochoa.

¶ 13 The nerve conduction studies involve electrical stimulation of sensory and motor nerves through electrodes applied to the surface of the skin. Somatosensory evoked potentials involve a similar procedure, except that electrodes are placed on the spine and scalp as well. Electromyography involves inserting electrodes through the skin and into the muscles to assess the condition of the muscles and motor nerves. The diagnostic local anesthetic block involves injection of anesthetic close to a nerve for collection of data concerning the origin of pain, numbness and weakness. No procedural explanation was offered for the intravenous phentolamine sympathetic block. Ochoa's affidavit states that "the examination I propose does not include harmful procedures designed to cause pain ... and will not harm Plaintiff's Implanted Pulse Generator." Ochoa alleges that the tests are necessary to determine the neurological cause of Simms' condition.

¶ 14 On July 24, 2002, the District Court granted the Defendants' motion to compel. The court rejected Simms' contentions that the medical information was availablefrom other sources, that Ochoa is biased, that the medical exam would be unreasonably burdensome, and that the exam would subject Simms to unreasonable pain, discomfort, and risk. It concluded that Simms has placed his physical and mental condition at issue and that good cause for the medical exam was demonstrated by the Defendants. Simms was ordered to contact Ochoa and schedule the examination at the first available appointment agreeable to Simms.

¶ 15 On August 7, 2002, the Simms filed a Petition for Writ of Supervisory Control with this Court. They alleged that the District Court was proceeding based on a mistake of law that posed a risk of gross injustice when it compelled Simms to submit to painful, invasive, elective or potentially harmful procedures.

DISCUSSION

ISSUE 1

¶ 16 Are the facts and issues presented in this case appropriate for resolution by supervisory control?

¶ 17 The Simms contend that supervisory control is appropriate in this case because the District Court ordered Mr. Simms to submit to an independent medical examination that will subject him to overly burdensome, painful, invasive, elective and potentially harmful procedures. They maintain that the Rule 35, M.R.Civ.P., does not permit exams of this nature and that an appeal will be an inadequate remedy for the District Court's error.

¶ 18 This Court will assume supervisory control of a district court to direct the course of litigation where the district court is proceeding based on a mistake of law, which if uncorrected, would cause significant injustice for which an appeal is an inadequate remedy. Park v. Sixth Judicial Dist. Court, 1998 MT 164, ¶ 13, 289 Mont. 367, ¶ 13, 961 P.2d 1267, ¶ 13. Whether supervisory control is appropriate is a case-by-case decision that considers the presence of extraordinary circumstances and a particular need to prevent an injustice from occurring. Park, ¶ 13.

¶ 19 In Winslow v. Montana Rail Link, Inc., 2001 MT 269, 307 Mont. 269, 38 P.3d 148, we accepted supervisory control to determine the proper scope of discovery pursuant to a Rule 35, M.R.Civ.P., psychological examination ordered by the district court. We recognized that a defendant's right to physical or psychological examination of the plaintiff, pursuant to Rule 35, M.R.Civ.P., is based on fairness when that condition is placed in issue through a claim for damages. Winslow, ¶ 5. However, we noted that the right to examination must be balanced with the plaintiff's constitutional right to privacy. Winslow, ¶ 5. We held that if the district court proceeded based on a mistake of law as to the scope of Rule 35, M.R.Civ.P., discovery, the harm could not be remedied by way of appeal. Winslow, ¶ 6.

¶ 20 In this case, Simms has been compelled by the District Court to attend an extensive medical examination by the Defendants' expert 750 miles from home. The examination includes procedures which involve invasive techniques including the penetration of Simms' skin with surgical or diagnostic instruments. The District Court concluded that the medical examination is permitted pursuant to Rule 35, M.R.Civ.P.

¶ 21 An individual's right to privacy and the right to safety, health, and happiness are constitutionally protected in Montana. Art. II, Sec. 10, Mont. Const.; Art. II, Sec. 3, Mont. Const. The scope of Rule 35, M.R.Civ.P., and the extent to which it permits an individual to be subjected to extensive and...