8.1 Rule 4:10 of the Rules of the Virginia Supreme Court

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

8.1 RULE 4:10 OF THE RULES OF THE VIRGINIA SUPREME COURT

8.101 Introduction. Rule 4:10 of the Rules of the Virginia Supreme Court (the Rules) governs medical examinations in civil cases in Virginia.² The rule provides a mechanism for a party to have a physical or mental exam performed on the opposing party by a medical provider. Rule 4:10 states:

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending, upon motion of an adverse party, may order the party to submit to a physical or mental examination by one or more health care providers, as defined in § 8.01-581.1, employed by the moving party or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties, shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and shall fix the time for filing the report and furnishing the copies.

(b) Out-of-State Examiners. Examiners named in such an order shall be licensed to practice in, and shall be residents of or have an office in, this Commonwealth. However, notwithstanding the reference to licensure by this Commonwealth in the definition of health care providers in § 8.01-581.1, the court may, in the exercise of its sound discretion and upon determining that the ends of justice will be served, order an examination by one who is not licensed to practice in, is not a resident of, and does not have an office in, this Commonwealth but who is duly licensed in his or her jurisdiction.
(c) Report of Examiner.

(1) A written report of the examination shall be made by the examiner to the court and filed with the clerk thereof before the trial and a copy furnished to each party. The report shall be detailed, setting out the findings of the examiner, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition. In an Electronically Filed Case, the report of examination shall be filed in electronic or digital image form as provided in Rule 1:17.

(2) The written report of the examination so filed with the clerk may be read into evidence if offered by the party who submitted to the examination. A party examined who takes the deposition of any examiner who shall have conducted an examination ordered pursuant to this Rule, waives any privilege that might have been asserted in that action or in any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

(3) This subdivision applies to examination made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of a health care examiner or the taking of a deposition of such examiner in accordance with the provisions of any other Rule.³

Rule 4:10 exams are often referred to as "independent medical exams" or IMEs. While the original intent of the rule may have been to provide an "independent" exam, in practice the expert is usually handpicked by the party requesting the exam and is anything but independent. There is nothing in Rule 4:10 that contemplates an "independent" examination. The rule does not mention "independent," and the health care provider designated in the order required by the rule is not a witness for the court.⁴

The are few Virginia Supreme Court opinions addressing the rule. Most direction regarding this rule comes from circuit court opinions and orders and Virginia Supreme Court cases that tangentially provide guidance. Although federal court cases can provide some direction, Rule 35 of the Federal Rules of Civil Procedure differs significantly from the current Rule 4:10. While Rule 4:10 may have been substantially the same as Rule 35 of the Federal Rules of Civil Procedure when it was drafted, changes over the years to the Virginia Rule have left the two rules quite different.⁵

8.102 Prerequisites for the Examination. The threshold question should be, "Is the exam warranted?". The rule specifically states the court "may" order an exam, leaving the court some discretion. Rule 4:10 requires more than relevance. It requires that the mental or physical condition of the person to be examined be in controversy. If it is, an order requiring an examination may be made only on motion for good cause shown.

Rule 4:10 does not specify how a party moving for an examination may meet his or her burden. While no Virginia cases address this issue, the United States Supreme Court has addressed it in Schlagenhauf v. Holder.⁶ The Court found in Holder:

[The "in controversy" and "good cause" requirements of Rule 35] are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant.⁷

The Court recognized that, in some cases, pleadings alone are sufficient to meet both requirements, such as when the plaintiff in a negligence action asserts a mental or physical injury or where a defendant asserts a mental or physical condition as a defense to a claim.⁸ A thornier issue is presented when a physical or mental condition of a party is sought to be placed in contention by other parties. Thus, in Schlagenhauf, the plaintiff contended that the defendant should have seen the lights of a truck for a distance of 3/4 to 1/2 mile and that he had previously been involved in a similar rear-end collision. The district court ordered not only a visual examination, but also nine examinations by specialists in internal medicine, ophthalmology, neurology, and psychiatry. Agreeing that a visual examination would have been appropriate in the court's discretion, the Supreme Court found no basis for the psychiatric, neurological, or internal medicine examinations.⁹ While the Court's concern with the range of the examination in relation to what is in controversy is most clearly defined in a case like Schlagenhauf, the "in controversy" and "good cause" requirements apply in every case.¹⁰ They protect a plaintiff who suffers a broken leg in an automobile accident, for instance, from psychological, internal medicine, or other types of examinations that have no relevance or bearing on the injuries claimed.

A party is not required to prove his or her case on the merits in order for an examination to be ordered. An evidentiary hearing may be necessary but is not required in all cases. "It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule."¹¹ As previously noted, in some instances the pleadings alone will satisfy the burden. Medical reports, depositions, and discovery may all be used.

Even when the "in controversy" and "good cause" predicates are met, an examination does not necessarily or inevitably follow. Rule 4:10(a) provides that a court on motion "may" order a party to submit to an examination. In Virginia Linen Service, Inc. v. Allen,¹² the court referred to the language of the rule that the court "may order" an examination and concluded "(w)hether it will do so is in the sound judicial discretion of the court on the showing made."

In Seidel v. Walker,¹³ the plaintiff was seen by an orthopedic surgeon pursuant to a Rule 4:10 examination. The doctor recommended electrodiagnostic studies. The plaintiff refused, and the defendant moved for an order requiring the plaintiff to submit to the studies by a neurologist. The plaintiff had been seen by thirty-two health care providers and had undergone numerous medical procedures. None of his health care providers recommended electrodiagnostic studies. The court held that "Rule 4:10 is not designed to permit any proposed examination just because [the plaintiff's] physical condition is at issue" and that good cause had not been stated for the electrodiagnostic studies.¹⁴

8.103 Who May Be Examined. Rule 4:10(a) provides that a party or a person in the custody or under the legal control of a party may be examined, subject to the significant caveat that the mental or physical condition (including the blood group) of the person must be "in controversy." A defendant as well as a plaintiff may fit into this category. The rule also contemplates that a non-party in the custody or under the legal control of a party may be examined. Thus, for example, a child, not technically a party to a support proceeding between his or her parents, may be ordered to submit to a test to determine parentage as long as he or she is in the custody or under the legal control of a party.

8.104 Who May Conduct the Examination. Rule 4:10(a) provides for a "physical or mental examination by one or more health care providers, as defined in § 8.01-581.1." Health care providers listed in that section are physicians, dentists, pharmacists, registered or licensed practical nurses or persons holding a multistate privilege to practice nursing, optometrists, podiatrists, physician assistants, chiropractors, physical therapists, physical therapist assistants, clinical psychologists, clinical social workers, professional counselors, licensed marriage and family therapists, licensed dental hygienists, and emergency medical care attendants or technicians.¹⁵ The broad range of health care providers who may...