Physical and Mental Examinations

• Author: Ashley S. Lipson
• Pages: 555-574

9-553

Once in a while civil litigators get an

opportunity to poke and stab

their adversaries.

Chapter 9

Physical and Mental Examinations

§9.10 Basic Training and Strategy

§9.20 Constructing and Timing Your Attack

§9.21 Ordering the Examination

§9.21(a) Notice

§9.21(b) Timing

§9.22 Obtaining the Examiner ’s Reports

§9.30 Targets

§9.31 People Subject to Examination

§9.32 Taking Aim at the Examiner’s Reports

§9.40 The Rules That You Need

§9.41 Federal Rules Pertaining to Physical and Mental Examinations

§9.42 State Rules Pertaining to Physical and Mental Examinations

§9.50 Defenses and Countermeasures

§9.51 Compliance—Preparation for the Examination

§9.52 Bringing an Observer

§9.53 Taping the Examination

§9.54 Objecting to the Examination

§9.60 Enforcing Compliance

§9.70 The Forms That You Need

Form 9.1 Notice of Physical and Mental Examination

Form 9.2 Response to Notice for Physical and Mental Examination

Form 9.3 Motion to Compel Physical/Mental Examination

Form 9.4 Plaintiff’s Motion for Sanctions for Improper Testing

§9.10 Guerrilla discOvery 9-554

1 Even the right to examine a personal injury plaintiff should not be taken for granted. Consider Crider v. Sneider, 243 Ga. 642, 256 S.E.2d

335 (1979), a wrongful-death case arising from an auto accident; it featured a defendant who, during discovery, claimed that he could not

recall any of the events surrounding the accident because of “traumatic amnesia.” The plaintiff moved to require the defendant to submit

to mental and physical examinations. The Georgia Supreme Court held that the trial courts refusal to grant the motion was not an abuse of

discretion because plaintiff had failed to “show good cause” since it appeared that the facts and circumstances of the collision could have

been established by other sources of evidence.

In Winters v. Travia, 495 F.2d 839 (2d Cir. 1974), the trial court refused to order a personal injury plaintiff to submit to a physical or mental

examination. The plaintiff, a Christian Scientist, sought damages for forced medication that was administered during involuntary hospital-

ization. She claimed that the examinations would violate her right to freedom of religion. The court ruled that her present condition was not

“in controversy” since the plaintiff was willing to abandon the claim that any present or anticipated disability was caused by the medical

treatment upon which the case was based.

2 See §9.30.

3 Rule 35(a) of the Federal Rules of Civil Procedure requires a showing to the court of “good cause.”

Everett v. Goodloe, 602 S.E.2d 284, 268 Ga. App. 536 (2004). The grant or denial of a motion requesting a mental examination of a litigant

rests in the sound discretion of the trial court.

Leinhart v. Jurkovich, 882 So.2d 456 (Fla. 4th D.C.A. 2004). The issue of whether or not to permit a defendant’s requested independent

medical examination is a matter of discretion.

§9.10 Basic Training and Strategy

In a purely allegorical sense, I often speak of

physically attacking the enemy litigants and joyfully

pummeling and dismembering them. But, in truth, the

only real physical combat that I have ever observed

occurred during settlement conferences, at times when

I was too young and too dumb to make certain that the

opposing parties stayed in separate rooms while we law-

yers conversed.

The physical examination, however, unlike any

other discovery or litigation device, provides that rare

opportunity for you to poke holes in the opposing party

himself, not just his case. It is an intrusive and insulting

process, to be sure. Moreover, the typical patient does

not enjoy a physical examination designed for his own

benefit and well-being, much less one contrived to assist

an enemy litigant. It has often been the case that the mere

threat of a physical examination would put an end to lit-

igation involving frivolous or fake injuries.

As you venture further into this chapter, you are

certain to notice a few contrasting features that will dis-

tinguish the examination from other discovery devices.

First, scheduling the examination normally requires

something more than mere notice. While it is true that in

many instances, such as those involving personal inju-

ry plaintiffs, the defendant’s right to an examination is

almost a “given,” even in such cases, a court order may

be required as a matter of course.

Secondly, the physical or mental condition had bet-

ter be a “key” issue in the case or invasion of privacy

shields may spring up. Rest assured that where an exam-

ination is not facially necessary to resolve some material

issue in the dispute, the court may be quick to grant a

protective order.

Thirdly, the strict “good cause shown” standard,

long since dropped from other discovery devices, still

applies to physical and mental examinations. So before

going off half-loaded, keep in mind that this weapon is

definitely not a “full automatic.”1

Throughout the chapter, you may also notice that there

are some relevant “dual” classification schemes. One con-

cerns a common reference to both “physical” and “mental”

examinations. Another involves the “federal and state” dis-

tinctions, which are nothing new at this juncture. But there

is a second classification or division, which is of unique

concern to this particular weapon. In particular, there are

two sets of rule provisions; the first pertains to the sched-

uling and conduct of the examination; the second involves

the medical reports prepared (or failed to be prepared) by

the examining physician, following the examination. Both

sets of rules are important; each applies to a different party.

Rule 35 of the Federal Rules of Civil Procedure, our model

rule for this chapter, and one followed by most states, neat-

ly divides the two issues into Rules 35(a), titled “Order for

Examination” and 35(b) titled “Report of Examiner.”2

§9.20 Constructing and Timing

Your Attack

The dual nature if this particular device, as discussed

immediately above, suggests that there are two separate

and, indeed opposing audiences—those seeking to order

and conduct the examination and those seeking the reports

of the examining physicians. Because of the personal and

often intrusive nature of the process, the granting of an

order requiring a person to appear for either a mental or

physical examination will always be subject to the court’s

discretion, regardless of whether the proceeding is within

the scope of federal or state jurisdiction.3