Physical and Mental Examinations

• Author: Jennifer Duncan-Brice
• Pages: 163-196

24-1

PHYSICAL & MENTAL

EXAMINATIONS

Chapter 24

PHYSICAL AND MENTAL

EXAMINATIONS

QUICK VIEW

Definitions: An examination pursuant to SCR 215 (a “Rule 215 exam”) is a medical examination conducted by the

discovering party’s examiner. The examinee is a person whose physical or mental condition is in controversy.

Process: A Rule 215 examination is not an entitlement. To compel the examinee to submit to the exam, the

discoverer must secure either the examinee’s consent in a stipulation or the court’s order. The examiner need not be

a physician but may be done by a licensed professional.

In addition to the exam, Rule 215 requires the examiner to provide a duplicate original of examiner’s report to the

examinee within 21 days of the examination.

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

examination; 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 215 examinations by stipulation rather

than by motion.

Discoverer’s counsel: Before your physician conducts a Rule 215 exam, wait until (1) the examinee’s injuries have

stabilized, and (2) you have reviewed the examinee’s medical records and deposed the examinee. Select a physician

who will make a good trial witness. After the exam, provide a copy of the examiner’s report to the examinee and the

examinee’s attorney within 21 days following the completion of the exam.

Examinee’s counsel: Narrow the scope of the examination pursuant to the “in controversy” requirement. 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: SCR 215; 735 ILCS 5/2-1003; FRCP 35.

Related Topics: Motion Practice, Ch 14; All Discovery, Ch 20; Depositions, Ch 23; Interrogatories, Ch 25.

Forms: See digital access for the following forms:

• Form 24:10, Stipulation for Physical Examination.

• Form 24:20, Motion for Physical (or Mental) Examination.

• Form 24:30, Order for Physical (or Mental) Examination.

• Form 24:40, Motion to Compel Physical Examination.

• Form 24:50, Plaintiff’s Response to Defendant’s Motion to Compel Examination.

• Form 24:60, Sample Letter - Request for Examiner’s Report.

ILLINO IS PRETR IAL PRAC TICE 24-2

PHYSICAL & MENTAL

EXAMINATIONS

TABLE OF CONTENTS

I. General Points

A. Overview

§24:01 The Process

§24:02 Advantages

§24:03 Disadvantages

§24:04 Governing Law

§24:05 Constitutionality

§24:06 Which Civil Actions

§24:07 No Limit on Number

§24:08 Multiple or Subsequent Exams

§24:09 Impartial Exams

§24:10 Rule 215 Controls Over Statutory Provisions

B. Who Is Subject to Exam

1. PARTIES

§24:20 Plaintiffs

§24:21 Defendants

2. NON-PARTIES

§24:30 Minors and Incompetents

§24:31 Agents and Employees

§24:32 Non-Parties Not Controlled by Parties

C. Preliminary Considerations

§24:40 Timing With Other Discovery

§24:41 Which Exams to Request

§24:42 Obtaining Previous Records

§24:43 Producing Previous Records

II. Logistics of Exams

A. Overview

§24:50 Must Be Stated in Order

§24:51 Should Be Stated in Stipulation

B. Examiner

1. GENERAL POINTS

§24:60 Physician or Non-Physician?

§24:61 Impartial Exams

§24:62 Illinois License Not Required

§24:63 Suitable Expertise Required

§24:64 Opposite-Gender Examiner

§24:65 Selecting the Right Examiner

2. CHALLENGING DISCOVERER’S DESIGNEE

§24:70 Investigating Designee

§24:71 Discoverer’s Choice Not Absolute

§24:72 Grounds for Rejecting Designee

§24:73 Whether to Object

§24:74 How to Object

C. Location

§24:80 Type of Premises

§24:81 Geographic Locations

D. Time

§24:90 Basic Points

§24:91 Discovery Cut-Off

24-3 PHYSICAL AND MEN TAL EXAMI NATIONS

PHYSICAL & MENTAL

EXAMINATIONS

E. Scope & Manner

§24:100 Scope

§24:101 Manner

F. Conditions

§24:110 Basic Points

§24:111 Who May Accompany Examinee

§24:112 Who May Assist Examiner

G. Costs

§24:120 Cost of Examination

§24:121 Examinee’s Travel and Time

III. Requesting Exam

A. By Stipulation

§24:130 Stipulation or Order Required

§24:131 Advantages of Stipulation

§24:132 Stipulation for Exam

§24:133 Stipulation to Avoid Exam

B. By Motion

1. THRESHOLD REQUIREMENTS

a. Condition “in Controversy”

§24:140 Basic Principle and Burden

§24:141 Established by Examinee’s Pleadings

§24:142 Established by Discovery Responses

§24:143 Plaintiff’s Condition

§24:144 Defendant’s Condition

§24:145 Mental Examinations

§24:146 Blood Tests

§24:147 DNA Tests

b. “Good Cause” for Ordering Exam

§24:160 Basic Principle and Burden

§24:161 Proof Required

2. COURT’S DISCRETION (IF THRESHOLD REQUIREMENTS MET)

§24:170 Basic Points

§24:171 Key Factors

3. INITIATING MOTION

a. Preliminary Issues

§24:180 Attempt to Resolve

§24:181 Standing to Request an Examination

b. Motion Package

§24:190 Moving Papers

§24:191 Motion Format and Contents

§24:192 Affidavits

§24:193 Memorandum

§24:194 Request for Hearing

§24:195 Proposed Order

c. Service

§24:200 Earliest Date

§24:201 Last Possible Date

§24:202 Whom to Serve

4. HEARING AND APPEAL

§24:210 Oral Argument at Hearing

§24:211 Recourse of Party Subject to Examination Order