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Orders for Physical or Mental Examinations

As part of the discovery process, a defendant may require the opposite party to see a doctor and submit to a physical or mental examination.  This usually happens in cases where the action is for personal injuries.

Rule 35 of the Federal Rules of Civil Procedure deals with orders for physical and psychological evaluations of parties.  When the health, either mental or physical, of a party, an agent or a person in the legal control of a party is in controversy, the judge may order the party to submit to a physical or mental examination by a physician or to produce for examination his agent or the person in his/her custody or legal control.  A motion showing good cause has to be filed for the court to issue such an order.  The party to be examined should be given sufficient notice.  The order should specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.  The party to be examined can request the party causing him/her to be examined a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. Once this report is delivered, the party causing the examination can request the party examined and is entitled to receive reports of any tests/examinations previously conducted on the same condition. If the person examined is not a party to the cases/he is exempt from producing such report provided s/he informs that the report is unavailable.  The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial.

It is important to remember that by requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege s/he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him with respect to the same mental or physical condition.

Inside Orders for Physical or Mental Examinations