Conflicting X-Ray Reports Subject for Cross-Examination, Not Grounds to Compel a CT Scan Superior Court of the Virgin Islands, August 23, 2017

Defendants Hess Oil Virgin Islands Corporation and Hess Corporation filed a motion to compel plaintiff Andrew Wilson to undergo a CT scan of his chest to determine whether there was any objective evidence of lung disease. The court denied the motion to compel.

Wilson alleged asbestos exposure and the development of asbestosis due to his work at the oil refinery on St. Croix in the U.S. Virgin Islands. The plaintiff’s case was consolidated with over a hundred cases. The court ordered the plaintiffs to provide medical records or releases and to submit to a medical examination by a physician chosen by the defendants. The defendants agreed to request a CT scan only for those plaintiffs for whom Dr. James Crapo, the doctor chosen by defendants, and Dr. John, the doctor hired by the plaintiffs. If Dr. Crapo and Dr. John disagreed as to which plaintiffs required a CT scan, the defendants were entitled to seek a court order compelling this test. The defendants thus filed a motion to compel a CT scan of the plaintiff.

The defendants argued that the plaintiff’s sole objection to the chest CT scan was that Dr. John did not agree with Dr. Crapo that one was required. The plaintiff argued that the defendants only requested a CT scan because the radiologist, Dr. Galiber, gave a conflicting reading, and the plaintiff already did a medical examination and chest x-rays. Thus, the defendants have not shown good cause because a CT scan was not necessary to diagnose occupational lung disease.

The court noted the lack of precedent regarding Virgin Islands Rule of Civil Procedure 35(a)(1), which provided that the court may order a party to submit to a medical examination. The practice was to apply the Federal Rules of Civil Procedure and local rules. After an extensive discussion of the rules of precedent, the court stated that it should look to the body of law first to harmonize its case law. Thus the court relied upon Sloan v. Cost-U-Less, Inc., 2001 WL 1464769 (Terr. V.I. 2001) from the Territorial Court of the Virgin Islands, for guidance. Sloan found that courts may order an examination, but when the plaintiff already had one examination a stronger showing of necessity may be required.

Here, the plaintiff clearly put his physical condition at issue, and the court was not persuaded by his objection that a CT scan would provide no benefit. The plaintiff also objected due to the risks associated with CT scans through the high dose of radiation, and that should further injury result, would he have a right to sue defendants’ hired doctors for malpractice? The court noted that the defendants did not reply to the plaintiff’s opposition to its motion to compel, and a reply would have greatly helped the court in analyzing plaintiff’s valid concerns; “…the arguments of counsel cannot unravel this Gordian knot.” Nevertheless, the court rejected the plaintiff’s potential claim for malpractice because it was not its responsibility, at this time, to decide whether such an examination would give rise to a doctor-patient relationship.

However, the court accepted the plaintiff’s concern about the potential risks associated with a CT scan. The court quoted the plaintiff: “…[a] [d]efendant cannot endanger or increase the risk of harm to a [p]laintiff in their medical testing. Courts recognize the need to balance the invasiveness or danger of any given requested procedure with its probative value.” Although the plaintiff did not move for a protective order, he raised a legitimate concern; more importantly, defendants did not ask that plaintiff be ordered to undergo a CT scan because Dr. Crapo discovered something abnormal on his x-rays. “That is, the reason for requesting a CT scan is not medical but legal: getting a clearer picture of Wilson’s lungs for discovery purposes because Dr. Galiber read two x-rays of the same man and reached contradictory conclusions for each…Such conflicts are for cross-examination.”

Read the full decision here.

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