Neck Injury
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Defendants may not require multiple physical examinations of plaintiffs in cases where different doctors treated separate orthopedic conditions, a Lackawanna County Court of Common Pleas judge has ruled.

In DiGiacinto v. Obelinas, Judge Terrence R. Nealon, ruling on what was apparently a first-impression issue, said the defendants did not have good cause to compel the plaintiff to undergo two physical exams because the plaintiff had been treated by two orthopedists for alleged neck and wrist injuries. Nealon noted that orthopedists and neurosurgeons regularly treat and testify regarding both cervical and carpal tunnel injuries, and he said the special discovery master in the case should not have ordered plaintiff Thomas F. DiGiacinto to undergo separate exams by two different defense doctors.

“The defense demand for separate examinations by different specialists is based upon the faulty premise that the same medical specialists cannot treat and evaluate a cervical injury and a carpal tunnel condition,” Nealon said. “The fact that plaintiff has received treatment for those injuries from two separate orthopedic surgeons is of no consequence and does not warrant subjecting plaintiff to the burden of two examinations under Rule 4010 [of the state Rules of Civil Procedure].”

According to Nealon, in December 2007, DiGiacinto was involved in a motor vehicle accident with Ralph C. Obelinas, who was acting in the course of his employment, on Route 476 in Montgomery County. DiGiacinto sued Obelinas and his employer, Nivert Metal Supply.

DiGiacinto was first seen by Dr. Neal A. Stansbury, who treated him for left shoulder injuries and bilateral wrist complaints. Stansbury also referred DiGiacinto to one of his partners, Dr. Amir H. Fayyazi, for treatment of alleged cervical injuries.

Stansbury eventually performed carpal tunnel release surgeries on both of DiGiacinto’s wrists, and Fayyazi performed an anterior cervical discectomy and fusion surgery.

The defendants sought to schedule two physical examinations by defense experts, with one exam focusing on the cervical injuries and the other focusing on the wrist injuries. The defendants also sought to compel DiGiacinto to undergo a psychological examination, as he had alleged the injuries led to depression.

DiGiacinto agreed to undergo the psychological examination, but he contested the need to undergo two physical exams; however, the special discovery master overseeing the case granted a motion from the defendants to compel the two exams.

DiGiacinto argued that the defendants failed to show good cause under Rule 4010(a)(3), and that multiple exams would lead to more extensive invasion of bodily privacy.

According to Nealon, there was limited case law dealing with similar circumstances.

“There is a paucity of reported case law addressing requests for multiple examinations under Rule 4010, and most of those decisions concern instances where a second examination of the plaintiff was demanded by the defense after the plaintiff had already undergone an earlier examination,” Nealon said.

Nealon noted that courts have historically required physical examinations when a significant amount of time has elapsed after one examination, but they have also rejected the request when defendants simply argue that “something new might be discovered.”

Nealon largely relied on the Lackawanna County Court of Common Pleas 1998 decision in Lodolce v. Township of Roaring Brook, which held that while Rule 4010 “does not specifically permit or prohibit more than one examination of a plaintiff … a defendant bears a heightened burden of demonstrating good cause for supplemental medical examination.”

According to Nealon, the plaintiff cited three cases that relied on Lodolce, and the defendants relied on the 2012 unpublished Lackawanna County Court of Common Pleas opinion in Mehall v. Benedetto, in which an additional exam was granted after a plaintiff began alleging an additional injury.

Nealon, however, did not find the defendants’ arguments persuasive.

“Contrary to the defense contention in this case, the injuries and resulting surgeries asserted by DiGiacinto are, in fact, conditions that are treated and procedures that are performed by orthopedic surgeons who commonly testify regarding those issues on behalf of the plaintiff and the defense,” Nealon said. “Therefore, in lieu of retaining an orthopedic surgeon to evaluate DiGiacinto’s cervical and carpal tunnel claims, Obelinas and Nivert may opt to secure the services of a neurosurgeon to examine DiGiacinto.”

Nealon additionally advised that the jury should be instructed that the number of witnesses does not decide the weight of the evidence, and therefore any fear that the jury will decide the case based on the number of witnesses is unwarranted.

DiGiacinto’s attorney, Michael A. Snover, said he was pleased with the ruling.

“I think it’s in line with Lackawanna County precedent on the right to privacy being a significant right that has to be respected,” Snover said.

Defense counsel, Kevin M. Higgins of Byrne, Neyhart & Higgins in Scranton, Pa., did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 18-page opinion in DiGiacinto v. Obelinas, PICS No. 14-0614, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •