CHAPTER 12 - 12-5 Effect of No Examination

• Jurisdiction: United States

12-5 Effect of No Examination

Texas Rule 204.3 prohibits parties from commenting at trial about a party's willingness to submit to a physical or mental examination, stating: "If no examination is sought either by agreement or under this subdivision [allowing court-ordered examinations], the party whose physical or mental condition is in controversy must not comment to the court or jury concerning the party's willingness to submit to an examination, or on the right or failure of any other party to seek an examination."⁷⁵ The Rule's purpose is to "to prevent an adverse party from being forced to seek a medical evaluation or risk opening his failure to do so to comment before the jury."⁷⁶ It also prevents a party from using Texas Rule 204 generally to challenge the opposing party's medical evidence on the basis that an independent medical examination was neither sought nor conducted.⁷⁷

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Notes:

^[75] Tex. R. Civ. P. 204.3.

^[76] Parkway Hosp. v. Lee, 946 S.W.2d 580, 585 (Tex. App.—Houston [14th Dist.] 1997, writ denied), overruled on other grounds, Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003).

^[77] Parkway Hosp. v. Lee, 946 S.W.2d 580, 585 (Tex. App.—Houston [14th Dist.] 1997, writ denied), overruled on other...