Physical and Mental Examinations

• Author: Robert F. Kane/Donald G. Rez
• Pages: 231-268

Chapter 23

Physical and Mental

Examinations

QUICK VIEW

Definitions: An examination pursuant to CCP §§2032.010-2032.650 is a physical or mental examination of a

party whose physical or mental condition is in controversy by an expert chosen by the other party.

Process: There are three procedures under CCP §§2032.010-2032.650 for obtaining a physical or mental examination:

• Demand for physical examination in a personal injury case;

• Stipulation for physical or mental examination; and

• Court order for physical or mental examination.

Scope of Chapter: Logistics of exams; obtaining physical and mental examinations by stipulation, request, and

court order; conduct of the examination; exchange of reports of examining physicians; waiver of privilege.

Strategies and Tactics:

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

than by motion.

Movant’s counsel: Before you seek an 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: CCP §§2032.010-2032.650.

Related Topics: Motion Practice, Ch 14; All Discovery, Ch 20; Inspection of Documents and Other Things, Ch 21.

California Pretrial Practice & Forms 23-2

Forms in Digital Access: See digital access for the following forms:

• Form 23:10 Demand That Plaintiff Submit to Medical Exam #1.

• Form 23:20 Demand That Plaintiff Submit to Medical Exam #2.

• Form 23:30 Plaintiff’s Response to Demand for Medical Examination.

• Form 23:40 Notice of Motion for Order Compelling Compliance With Defendant’s Demand for Medical

Examination.

• Form 23:50 Memorandum of Points and Authorities in Support of Defendant’s Motion for Order

Compelling Compliance With Defendant’s Demand for Medical Examination.

• Form 23:60 Declaration in Support of Motion for Order Compelling Compliance With Defendant’s

Demand for Medical Examination.

• For m 23:70 Notice of Motion for Medical Examinations of Plaintiff and for Extension of Discovery Deadline.

• Form 23:80 Memorandum of Points and Authorities in Support of Motion for Medical Examinations of

Plaintiff and for Extension of Discovery Deadline.

• Form 23:90 Declaration in Support of Motion for Medical Examinations of Plaintiff and for Extension of

Discovery Deadline.

• Form 23:100 Plaintiff’s Demand for Copies of Report of Examination.

23-3 Physical and Mental Examinations

TABLE OF CONTENTS

I. GENERAL POINTS

A. OVERVIEW

§23:01 The Process

§23:02 Advantages

§23:03 Disadvantages

§23:04 Governing Law

§23:05 Constitutionality

§23:06 Which Civil Actions

§23:07 Special Family Law Provisions

§23:08 Usually Only One Exam Per Condition

§23:09 Requesting Multiple or Subsequent Exams

B. WHO IS SUBJECT TO EXAM

1. Parties

§23:20 Plaintiffs

§23:21 Defendants

2. Nonparties

§23:30 Minors and Incompetents

§23:31 Agents and Employees

§23:32 Nonparties Not Controlled by Parties

C. PRELIMINARY CONSIDERATIONS

§23:40 Timing With Other Discovery

§23:41 Which Exams to Request

§23:42 Obtaining Previous Records

§23:43 Producing Previous Records

II. SETTING THE LOGISTICS

A. OVERVIEW

§23:50 Must Be Stated in Order or Request

§23:51 Should Be Stated in Stipulation

B. EXAMINER

1. General Points

§23:60 Examiner Requirements

§23:61 Definitions

§23:62 Examiners Not Authorized by CCP §2032.020

§23:63 Multiple Examiners

§23:64 Selecting the Right Examiner

2. Challenging Discoverer ’s Designee

§23:70 Investigating Designee

§23:71 Discoverer’s Choice Usually Accepted

§23:72 Grounds for Rejecting Designee

§23:73 Whether to Object

§23:74 When to Object

§23:75 How to Object

C. LOCATION

§23:80 Type of Premises

§23:81 Geographic Location

D. TIME

§23:90 Basic Points

§23:91 Discovery Cut-Off

§23:92 Disclosure of Expert Witnesses