202 A.D. 487 | N.Y. App. Div. | 1922
The action is to recover damages for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant. An order was obtained by the defendant for the examination of the plaintiff before trial, before a referee, as to the nature and extent
The right to a physical examination of an adverse party did not exist in this State prior to the adoption of the amendments to section 873 of the Code of Civil Procedure. (Laws of 1893, chap. 721; Laws of 1894, chap. 428; McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50; Cole v. Fall Brook Coal Co., 159 id. 59, 69.) The Code permitted such an examination in connection with the examination of the party before trial.
In Tutone v. New York Consolidated R. R. Co. (107 Misc. Rep. 571) a county judge of Kings county vacated an order that provided that “ the report of the physician be given to counsel for the defendant.” On appeal this order was reversed and the order was modified to provide that the report of the doctor be given to the attorney for the defendant, and a copy thereof to the attorney for the plaintiff. (189 App. Div. 954.) As the modification was without opinion we are not aware of the grounds of the decision. The difficulty we find in following that decision is that section 873 of the Code of Civil Procedure does not require the physician to make a report to any one. In our opinion the reasoning and decision of Mr. Justice Pound in Mizak v. Carborundum Co. (75 Misc. Rep. 205, 208; affd., 151 App. Div. 899) is sound and should be adopted by this court. So far as it relates to the question under consideration it follows:
“ Plaintiff’s physicians file no report, are subject to no examination before trial, do not disclose their knowledge or information to the defendant without the plaintiff’s consent. They give their evidence in court upon the trial. A defendant in a negligence case may not be compelled to disclose before trial what the physical examination of plaintiff by its physicians reveals, any more than it may be compelled to disclose what it expects to prove by its other witnesses. Equality in this respect is fair. The real purpose of the examination is to discover to defendant ‘ the nature and extent of the injuries complained of.’ The section gives the court no express authority to require the defendant’s physicians to disclose before the trial the results of their examination of plaintiff, and I shall not venture to imply such authority. The failure of the Legislature to require any examination of the examining physicians before the referee, or any report to be made and filed by them, is, to my mind, satisfactory evidence that nothing of the kind was contemplated when the amendment of 1893 was enacted, and that it was expected that such physicians would merely testify, like other witnesses, on the trial, if called by either party.
“It is urged by plaintiff that Dr. Wilson is an officer of the court, by virtue of his designation as an examining physician and surgeon under the order herein, and that the court, therefore, has inherent power to order him to make such report. But the physicians and surgeons designated under section 873 take no oath of office and have no statutory fees. While the court may,*490 in its discretion, designate physicians and surgeons not nominated by the defendant, they are under no duty or obligation to act until defendant employs them to make the examination. Thus they necessarily become the employees of the defendant before they act and, when they act, it is in that capacity. As the very object of the section would be defeated if they did not thoroughly make the examination and freely and fully impart to defendant the results thereof, they should be satisfactory to defendant, provided, always, that there are no objections to their personal character or professional standing or to their availability in a given case. I conclude that they cannot be compelled, as officers of the court, to make a report to it.”
As the examination is made in behalf of the defendant, at its expense and because it is ignorant of the nature and extent of the plaintiff’s injuries, unless the physician communicated the result of the examination to the defendant’s attorney, he would be as ignorant of the plaintiff’s physical condition after the examination as he was before. It is, therefore, to be expected that the results of his examination be communicated to the defendant’s attorney. He cannot be required to file a report either with the referee or with the clerk of the court, nor can he be compelled to make a formal report to either party. Although the physicians are appointed by the court they are not thereby constituted a commission to hold an inquisition on the physical condition of the plaintiff. They are simply to testify on the trial as other witnesses to the facts they ascertained from such examination.
The order should be reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, without costs.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and defendant’s motion granted, without costs.
Now Civ. Prac. Act, § 306, with material change.— [Rep.