CHAPTER 12 - 12-3 Report of Examining Physician or Psychologist

• Jurisdiction: United States

12-3 Report of Examining Physician or Psychologist

Texas Rule 204.2(a) requires the examining party, upon the "request of" the examined person, to "deliver to the person a copy of a detailed written report of the examining physician or psychologist setting out the findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition."⁶¹ If the examining party delivers the report and requests "a like report of any examination made before or after the ordered examination of the same condition[,]" then the other party must produce any such reports "unless the person examined is not a party[, that is, the examined person is in the custody, conservator-ship or under the legal control of a party,] and the party shows that the party is unable to obtain it."⁶² Texas Rule 204.2(a)'s disclosure requirements are mandatory and apply even if the report at issue is privileged because, for example, the examiner is a consulting expert rather than a testifying one.⁶³

Several questions arise regarding the provision of reports, only some of which are answered by Texas Rule 204(a). First, is Texas Rule 204(a)'s requirement that the examining party deliver to the examined person "like reports of all earlier examinations of the same condition" limited to reports related to examinations of the examined person or does it include all reports of examinations of any person with the same condition as that of the examined person? Second, can the trial court order the examining party or the examined person to prepare a report and, if not, what happens if the examining party or the examined person fails to provide the required report? Third, can the examined person depose the examiner if the examiner is not disclosed as a testifying expert for the examining party? Finally, can the examined person obtain protection from the disclosure of extraneous information in the required reports?

No Texas case has considered whether the examining party's obligation under Texas Rule 204.2(a) to produce "like reports of all earlier examinations of the same condition"⁶⁴ includes reports about the examination of persons examined in other cases or circumstances with the same condition. The issue has not been conclusively decided by federal courts construing Federal Rule 35(b)(1)'s identical language.—One federal court has construed the language as requiring the production of such reports, while another court has limited the language to other reports of the examined person.⁶⁵

Texas Rule 204.2(a) does not permit the trial court to order the examining party or the examined person's examiner to prepare a report if the examiner fails or refuses to prepare one.⁶⁶ Texas Rule 204.2(a), however, permits the exclusion of testimony of an examiner who fails or refuses to prepare a report of the examination, providing: "If a physician or psychologist fails or refuses to make a report the court may exclude the testimony if offered at the trial."⁶⁷ On its face, the Rule gives the trial court discretion in deciding whether to exclude such testimony for noncompliance. In other words, exclusion is not automatic.⁶⁸

Whether the examiner can be deposed depends on whether the examiner is a testifying expert or a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert. If the examiner is such an expert, the examiner can be deposed. If the examiner is a consulting-only expert, the examiner cannot be deposed. This is made clear by the fact that Texas Rule 204.2 does not...