Physical and Mental Examinations

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 1011-1034

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Chapter 29

PHYSICAL AND MENTAL

EXAMINATIONS

QUICK VIEW

Definitions: An examination pursuant to TRCP 204 is a physical or mental examination of a party whose physi-

cal or mental condition is in controversy.

Process: A Rule 204 examination is not an entitlement. To compel the examinee to submit to the exam, the mov-

ant must secure either the examinee’s consent in a stipulation or show the court good cause for the examination.

If the exam is a result of a court order, the examiner must be a physician or psychologist.

In addition to the exam, Rule 204 provides that, if requested, the party causing the examination must provide a

detailed written report of the physician conducting the exam. Thereafter, upon request, the examinee must pro-

vide a written report of any examination of the same condition. By stipulation, the parties may alter or eliminate

these requirements.

Scope of chapter: How to obtain physical and mental examinations; prerequisites for a court order for an exami-

nation; the conduct of the examination; the exchange of reports of examining physicians; sample forms.

Strategies and tactics:

Both parties: To promote efficiency, predictability and control, handle Rule 204 examinations by stipulation

rather than by motion.

Movant’s counsel: Before you seek a Rule 204 exam, wait until (1) the examinee’s injuries have stabilized, and

(2) you have reviewed the examinee’s medical records and deposed the examinee. Request a physician who will

make a good trial witness. After the exam, if the examinee requests your physician’s report, make a reciprocal

request for all other examination reports concerning the same condition.

Examinee’s counsel: Narrow the scope of the examination pursuant to the “in controversy” and “good cause”

requirements. Then, monitor the examination itself to assure that (1) the examination doesn’t exceed its

authorized scope, and (2) the conclusions in the subsequent report are based on conditions that were actually

examined.

Statutes and rules: TRCP 204.

Related topics: Motion Practice, Ch 16; All Discovery (scope of discovery), Ch 24; Requests for

Disclosure, Ch 26; Depositions, Ch 28; Interrogatories, Ch 30; Requests for Admission, Ch 31; Discovery

Disputes, Ch 32.

(Rev. 10, 4/13)

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TEXAS PRETRIAL PRACTICE 29-2

TABLE OF CONTENTS

I. General Points

A. Overview

§29:01 In General

§29:02 Advantages

§29:03 Disadvantages

§29:04 Governing Law

§29:05 Constitutionality

§29:06 Which Civil Actions

§29:06.1 Not for Guardianships or Other Stautory Commitment

§29:07 Usually Only One Exam Per Condition

§29:08 Requesting Multiple or Subsequent Exams

B. Who Is Subject to Exam

1. PARTIES

§29:14 Plaintiffs

§29:15 Defendants

2. NON-PARTIES

§29:20 Minors and Incompetents

§29:21 Agents and Employees

§29:22 Non-Parties Not Controlled by Parties

C. Preliminary Considerations

§29:28 Timing With Other Discovery

§29:29 Which Exams to Request

§29:30 Obtaining Previous Records

§29:31 Producing Previous Records

§29:32 Examination by Agreement

II. Setting the Logistics

A. Overview

§29:36 Must Be Stated in Order

§29:37 Should Be Stated in Stipulation

B. Examiner

1. GENERAL POINTS

§29:42 Examiner Requirements

§29:43 Definitions

§29:44 Examinations Not Authorized by 204

§29:45 Multiple Examiners

§29:46 Selecting the Right Examiner

2. CHALLENGING DISCOVERER’S DESIGNEE

§29:52 Investigating Designee

§29:53 Discoverer’s Choice Not Absolute

§29:54 Grounds for Rejecting Designee

(Rev. 1, 12/00)