The "good cause" required to be shown to compel a physical examination of a party, the reasonableness of a party's refusal to submit to the requested physical examination, and the factors which enter into the exercise of judicial discretion in the circumstances are issues presented by the pending motion. R. 4:19. In this medical malpractice action, defendant, Henry P. Wager, M.D., moves for an order to compel plaintiff Carmen Duprey to submit to a procedure known as hysterosalpingography, which procedure is resisted on the grounds of being unreasonable in the circumstances.
Plaintiff alleges that Dr. Wager, engaged to remove the right ovary which was large and cystic, also removed the right fallopian tube which rendered her sterile. It appears undisputed that the left fallopian tube was not visualized during the surgery performed when the plaintiff was 39 and unmarried. Plaintiff remains unmarried and places emphasis upon that status in her affidavit, quoted here in essential parts:
I feel a hysterosalpingogram would invade the privacy of my person and impede my chances of eventually marrying because of the absence of a hymen which is considered a prerequisite by many of my countrymen before marriage.
Just the thought of undergoing such an examination causes me such stress and mental anguish.
My personal physician, Juan A. Mendoza, M.D., advised me that an alternate procedure was available.
Dr. Esther Garcia advised me that such a performance [sic] would be very painful to a virgin and that it is usually for a woman who is not.
Hysterosalpingography involves the injection of radiopaque substances into the uterus and fallopian tubes for diagnostic purposes. Usually a cannula or catheter is inserted into the uterine cervical canal after visualization of the cervix through an appropriate speculum. A water-soluble opaque material is introduced into the uterine cavity. The procedure is carried out in a dark room and intermittent X-ray screening will show the shape of the uterus, filling of the tubes and peritoneal spill if it occurs. Browne, J. C. McClure, Postgraduate Obstetrics and Gynaecology, (4 ed. 1973), at 362.
Both parties have offered the reports of their respective experts describing the procedure, its purposes and the complications that may attend such a procedure. To perform this procedure a speculum is placed in the vagina and the cervix must be exposed. Plaintiff's expert maintains the procedure can "be painful normally and with the absence of tubes will be of even greater pain." The risk of infection is present, according to the medical expertise of both plaintiff's and defendant's physicians. Further complications that may result, according to defendant's expert, are hemorrhage and venous or lymphatic intravasation. Finally, plaintiff's expert states that no useful information can be obtained from that X-ray; it is only 70% accurate at the optimum and to subject plaintiff, who is a virgin, to this procedure would be unnecessarily cruel and painful, causing unusual physical and psychological trauma.
Pursuant to our rules, R. 4:19, the court in which a claim for personal injuries is pending may within its discretion order the plaintiff to submit to a physical examination or X-ray when "good cause" has been shown. The constitutionality of a statute granting a court the discretionary power to order a physical examination of the plaintiff was upheld in Golden v. Public
Service Co-ordinated Transport, 9 N.J.Misc. 1337, 157 A. ...