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Compelling Medical Examinations of Litigants: A Comparative Analysis*

  • Stephen Goldstein

Extract

Compelling litigants to undergo medical examinations or tests raises a very clear problem of conflicting values. On the one hand, compelling any person to undergo a physical examination or test against his will is a clear impingement on his rights of liberty, privacy and bodily integrity. On the other hand, there are situations in which without such examinations or tests of a civil litigant the right of his adversary to fair and properly conducted litigation would be frustrated.

In this article, we will discuss how four different legal systems have attempted to balance these conflicting rights in their development of rules concerning such medical examinations. We will discuss rather fully three systems that are viewed as following common law procedure – namely, those of England, the United States and Israel – and compare them with that of Italy, as an example of the Romanist civil law countries.

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1 See Federal Rules of Civil Procedure, Rule 37(b)(2)(S). See also Sibbach v. Wilson & Co. Inc., 312 U.S. 1(1941).

2 Rules of Supreme Court, 1965, Order 24. Rule 16(2).

3 Id., Order 26, Rule 6(2).

4 Chapter 46, para. 23.

5 Id., para. 20.

6 Current Law Statutes Annotated 1969, 46/20. See* also the Speech of Widgery L.J. in Edmeades v. Thames Board Mills Ltd. (C. A.) [1969] 2 Q.B. 67, 72–73:

I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination…

This case will be discussed at greater length infra.

7 As to England, see Edmeades v. Thames Board Mills Ltd., supra n. 6; as to Israel, see Shiloh v. Retskowski (1981) 35 (in) P. D. 449.

8 See as to the United States, Rule 746 of the Federal Rules of Evidence, as to England, Rules of Supreme Court, Order 40, as to Israel, the Rules of Civil Procedure, Rule 130ff., K. T. (1984) No. 4685, p. 2220, and the Rules as to Road Accident Victims Compensation (Experts), K. T. (1985) No. 4850, p. 1834

9 See, e. g., the recent Israeli Rules as to Road Accident Victims Compensation (Experts), supra n. 8, which require the use of court-appointed, as distinguished from party-chosen, medical experts in cases brought pursuant to the Israeli no-fault Road Accident Victims Compensation Law, 1975 (29 L. S. I. 311). See J. B. Weinstein, “Medical Malpractice Cases A View from the Federal Court House” (unpublished paper delivered at the Federation of Jewish Philanthropies Services Corporation, Third Annual Conference, Perspective on Malpractice Tort Reform, New York, Oct. 11, 1985). Cf., the views expressed by Denning, Lord in Re Saxton [1962] 1 W. L. R. 968, [1962] 3 All E. R. 92.

10 Report on Supreme Court Practice and Procedure (1953 Cmd. 8878), para. 342 (Evershed Committee).

11 Committee on Personal Injuries Litigation (1968 Cmd. 3691), para. 312 (Winn L.J. Chair).

12 Supra n. 6.

13 Rules 125–137.

14 (1981) 35(i) P.D. 736.

15 Rule 122. It should, however, be noted that Rule 13 of the new special Rules concerning court-appointed medical experts as to actions brought pursuant to the 1975 no-fault Road Accident Victims Compensation Law does provide for the entry of judgment against a party who does not comply with an order to be examined by such an expert. This is in clear contrast with the sanction provided for generally in Israeli law as to the failure of a party to comply with medical examination orders, both as to party-chosen and court-appointed medical experts. It is, however, as discussed in the text, consistent with the sanctions provided under English and American law as to the failure to comply with medical examination orders, as well as those provided for in Israeli law as to other types of pre-trial discovery orders. See generally as to Israeli law concerning sanctions for the violation of procedural orders, Goldstein, S., “Execution of Judgments and Means of Enforcement Available to a Court”, in Goldstein, S., ed., Israeli Reports to the Twelfth International Congress of Comparative Law (Jerusalem, 1986) 150, 190218.

16 In our view such may, indeed, have been the historical reason for this difference in treatment between medical examination orders and those concerning discovery of documents or responses to interrogatories. Its current significance has, however, been diminished by the new provisions concerning road accident victims discussed in the preceeding footnote. Even more significant, however, is the fact that paradoxically, today the situation may be reversed with the sanction of Rule 137 for the failure to obey medical examination orders being more severe than that provided for in Rule 122 as to the other orders, at least as far as concerns recalcitrant plaintiffs. This is so due to a 1984 change as to the effect of a dismissal of the plaintiff's action as a result of his failure to comply with orders concerning the discovery of documents and responses to interrogatories. Prior to this amendment, such dismissals were with prejudice, i.e., res judicata applied so as to prevent relitigation of the claim. However, in the new Rules of Civil Procedure adopted in 1984, the Rule was changed so that such dismissals do not prevent a plaintiff from reinstituting his claim. See generally, S. Goldstein, supra, n. 15, at 196–202.

On the other hand, subject only to the highly unlikely possibility that the plaintiff will receive permission to voluntarily terminate his action without res judicata preventing its reinstitution (see Hashuli Hacarmel Ltd. v. Neschetshvali (1985) 39(ii) P.D. 831), a disobedient plaintiff's loss of his case as a result of not being able to present his medical proof would appear to result in a judgment for the defendant which would preclude the plaintiff reinstituting the action.

We are very doubtful, however, that in changing Rule 202 as dascribed above, the draftsmen of the Israeli rules intended to distinguish between disobedience to medical examination orders and disobedience to document discovery or interrogatory orders, such that a more severe sanction would be applied to the former. Rather, we believe that this difference was an unintended by-product of the change in Rule 202, a change which was in itself problematic. Thus, it does not detract from the historical difference between the sanctions applied to disobedience to these two types of orders, an historical difference which would appear to have been intentional.

17 For a discussion of this history, see Sibbach v. Wilson & Co. Inc., supra n. 1.

18 379 U.S. 104.

19 Codice di Procedura Civile, art. 260. See Carpi, F., Colestani, V., Taruffo, M., Commentario Breve al Codice di Procedura Civile (Padora, 1984) 374375; Cappalletti, M. & Perillo, J.M., Civil Procedure in Italy (The Hague, 1965) 234235.

20 Codice di Procedura Civile, art. 118; Carpi, et al., supra n. 19, at 187–188; M. Cappalletti, et al., supra n. 19, at 235. Compare the French law in this regard as described in M. Le Roy, , L'evaluation du Prejudice Corporel (Paris, 9th ed., 1982) 23, n. 9. As noted above, the sanction for such refusals under the American Federal Rules of Civil Procedure is more extreme, i.e., loss of the case.

21 See, e.g., Gitto v. “Italia” Societa Anonima di Wavigazione, 27 F. Supp. 785 (S.D.N.Y. 1939) (U.S.); Edmeades v. Thames Board Mills (C. A.), supra n. 6, at 71–72 (England); Shiloh v. Retskowski, supra n. 7 (Israel). This result is, of course, axiomatic under Italian law where the medical expert is responsible solely and completely to the court with no connection to any party. In addition, in Italian procedure the parties may challenge the appointment of any expert on the same grounds that may disqualify a judge. Codice di Procedura Civile, art. 192.

22 See, e.g., Strasser v. Prudential Life Ins. Co., 1 F.R.D. 125 (W.D. Ky. 1939); Stuart v. Bunford, 42 F.R.D. 591 (D. Okla. 1967) (U.S.); Shiloh v. Retskowski, supra n. 7 (Israel). See also the provision in Italian law that physical examinations must be made with all possible regard for the person examined. Codice di Procedura Civile, art. 260, para. 2; F. Carpi, et al., supra n. 19, at 375.

23 M. Cappalletti, et al., supra n. 19, at 234.

24 [1981] 3 All E.R. 866. While decided in 1978, the decision was not published until 1981, its publication apparently being the result of the later decision, discussed herein infra, which referred to it extensively.

25 Id., at 868.

26 [1981] 3 All E.R. 869.

27 Id., at 874–875.

28 21 F.R. Serv. 2d 1378 (E.D. Pa. 1976).

29 7 F.R.D. 169 (N.D. Ohio 1944).

30 Compare the French law in this regard pursuant to which the court can authorize the medical expert to order the hospitalization of a party for examination and tests. See M. Le Roy, supra n. 20, at 23, n. 9.

31 This approach should be compared with that taken by the Israeli Supreme Court in a line of decisions concerning the authority of prison officials to conduct physical searches and examinations of prisoners without explicit statutory authority to do so. In this series of cases, the Court has recognized that every person enjoys “a fundamental right to bodily integrity and the safeguarding of his human dignity”. See, e.g., Katlan v. The Prison Authority (1980) 34(iii) P.D. 294. Thus in the absence of specific statutory authority, prison authorities may not force a prisoner returning from an outside leave to undergo an enema in order to disclose attempts to smuggle drugs into prison. Ibid.

In discussing and applying this rule, the Court, despite its use of the term “human dignity” in addition to that of “bodily integrity”, has drawn an absolute distinction between actions of the prison authorities that involve “penetration” of the body and those that do not. If the action involves penetration of the prisoner's body, even if such penetration is slight, non-offensive and of a most common type – such as involved in blood tests – it may not be undertaken in the absence of explicit statutory authority. On the other hand, where the physical examination or test involves no such penetration, such as that involved in compelling a prisoner to dip his hands into a special chemical substance in order to disclose signs of drug abuse, the prison authorities may compel it even without explicit statutory authority. See Katlan v. The Prison Authority, supra this note; Hori v. The State of Israel (1982) 35 (ii) P.D. 85.

In drawing this absolute distinction between “penetration” examinations and these that do not involve penetration, the Israeli Supreme Court relied on an English decision, S. v. McC; W. v. W[1972] A.C. 24, 43, which held that an adult could not be compelled to undergo a blood test without specific statutory authority. The Supreme Court expressly rejected contrary American authority on this point which distinguished between significant and offensive intrusions into a person's body which are constitutionally prohibited, as opposed to minor, common and non-offensive intrusions such as involved in blood tests, which are permissable. See Schmerber v. Abrams, 384 U.S. 757 (1966); Breithaupt v. Abrams, 352 U.S. 408 (1957).

For reasons similar to those stated in the text of this article, we would reject the absolute penetration-nonpenetration distinction drawn by the Israeli Supreme Court in these cases. First and foremost, the distinction unduly emphasizes the right of bodily integrity at the expense of the other values involved, e.g., liberty and privacy, or, in the words of the Israeli Supreme Court, “human dignity”. Secondly, any distinctions drawn in this area should be recognized as matters of degree on a continuum rather than attempts to find an absolute dividing line, such as that of penetration. Finally, the distinction fails to take note of the almost universal recognition of the authority to order blood tests under proper circumstances. As we have discussed supra, this authority has been recognized by the Supreme Court of Israel itself, despite the lack of statutory authority, in cases of paternity suits. See Sharon v. Levi, supra n. 14. To be sure, the court in paternity matters does not technically “order” a defendant to undergo a blood test and the sanction for refusal is limited to the drawing of negative inferences against the defendant. However, these facts do not detract from the basic point that the threat of drawing such negative inferences constitutes judicial compulsion on the defendant to undergo blood tests against his will. Compare the opinion of Frankfurter J. in Sibbach v. Wilson, supra n. 1, at 16. If, indeed, a person did have a fundamental right not to be compelled to undergo blood tests against his will – in the absence of explicit statutory authority to this effect – the decision in the Sharon case would, in our view, be erroneous. Compare the opinion of Frankfurter J. in Sibbach v. Wilson, supra this note.

We believe that it is not erroneous precisely because there is no such fundamental right to object to blood tests under appropriate circumstances. And, indeed, there is some indication that the Israeli Supreme Court itself is troubled by the conflict between the absolute distinction it has drawn between penetration and nonpenetration examinations in the prison authority cases and its Sharon decision concerning paternity suits. See the discussion by Shamgar, J. in Hori v. The State of Israel, supra this note, at 95 ff.

32 Supra n. 18.

33 See Stuart v. Bunford, supra n. 22; Marroni v. Matey, 823 F.R.D. 377 (E.D. Pa. 1979).

34 Bodnar v. Bodnar, 441 F. 2d 1103 (5th Cir. 1971); Swift v. Swift, 64 F.R.D. 440 (E.D. N.Y. 1974).

35 Bodnar v. Bodnar, supra n. 34.

36 Swift v. Swift, supra n. 34.

37 Israeli Rules of Civil Procedure, Rule 128 (a).

38 [1973] Q.B. 58; [1972] 3 W.L.R. 653; [1972] 3 All E.R. 764.

39 [1980] 1 W.L.R. 1237.

40 Rules of the Supreme Court, Order 38, Rule 36 ff.

41 Id., Rule 37.

42 Supra n. 39, at 1242.

43 Compare, in this regard, the most perceptive comment on the “inquisitorial” nature of the discovery process pursuant to the American Federal Rules of Civil Procedure by Cappalletti, M. and Garth, B., in the International Encyclopedia of Comparative Law, Vol. XVI, sec. 6–448, who in turn refer to the comments in this regard by A. Kohl, in another section of Vol. XVI, ch. 6 supra. As of this writing, these latter comments have not yet been available to us.

* This article is a revised version of a lecture that I had the honour and pleasure of presenting at the Postgraduate School, University of Pisa, on January 27, 1986. I wish to express my appreciation to Professor Francesco Paolo Luiso, Director of the Istituto di Diritto Processuale Civile at the University of Pisa, and to Professor Francesco D. Busnelli, Director of the Postgraduate School for their kindness in arranging this lecture. I also wish to thank Professor Luiso and the other participants in the discussion following this lecture for their very perceptive questions and comments which were of great help to me in producing this revised version of the lecture.

** Edward S. Silver Professor of Civil Procedure and Director of the Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem.

Compelling Medical Examinations of Litigants: A Comparative Analysis*

  • Stephen Goldstein

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