Physical and Mental Examinations

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 115-148

Chapter 28

PHYSICAL AND MENTAL

EXAMINATIONS

QUICK VIEW

Definitions: A CPLR 3121 examination is a physical or mental examination of a party whose physical or mental

condition is in controversy.

Scope of Chapter: How to obtain physical and mental examinations. Preparation for examinations (including

demands for medical records). The conduct of examinations. The exchange of reports of examining physicians.

Process: A CPLR 3121 examination is available upon notice to the party to be examined. No court order is

needed. In addition to the exam, CPLR 3121 provides that the notice may require the party to be examined to

provide authorizations permitting all parties to obtain hospital records relating to the condition in controversy.

After the exam, the examining party must give a copy of the physician’s report to any party that requests it in

exchange for any similar report in that party’s control.

Strategies and Tactics:

Movant’s counsel. Before you seek a CPLR 3121 exam, wait until (1) the examinee’s injuries have stabilized,

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

make a good trial witness.

Examinee’s counsel. Monitor the examination itself to assure that (1) the examination does not exceed its

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

examined.

Statutes and Rules: CPLR 3121, 3122; 22 NYCRR 202.17.

Related Topics: Motion practice, Ch 16; Scope of Discovery, Ch 24; Depositions, Ch 27; Interrogatories, Ch 29.

Forms: See digital access for the following forms:

• Form 28:10, Notice of Examination.

• Form 28:20, CPLR 3121(a) Hospital Records Authorization.

NEW YORK CIVIL PRACTICE BEFORE TRIAL 28-2

TABLE OF CONTENTS

I. General Points

A. Overview

§28:01 History and Purpose

§28:02 The Process

§28:03 Advantages

§28:04 Disadvantages

§28:05 The Governing Law

§28:06 Constitutionality

§28:07 Kinds of Cases

B. Who Is Subject to Exam

1. PARTIES

§28:20 Plaintiffs

§28:21 Defendants

§28:22 Prior Exam Not a Preclusion

2. NON-PARTIES

§28:30 Minors and Incompetents

§28:31 Agents and Employees

§28:32 Non-Parties Not Controlled by Parties

C. Preliminary Considerations

§28:40 Timing with Other Discovery

§28:41 Which Exams to Request

II. Setting the Logistics

A. Examiner

1. SELECTION BY DISCOVERER

§28:50 Need Not Always Be a Physician

§28:51 Non-Physician Agent

§28:52 Selecting the Right Examiner

2. CHALLENGING DESIGNATED EXAMINER

§28:60 Investigating Designee

§28:61 Grounds for Rejecting Designee

§28:62 Whether to Object

§28:63 When to Object

§28:64 How to Object

B. Location

§28:70 Doctor’s Office or Attorney’s Office?

§28:71 Which County?

§28:72 The Out-Of-State Examinee

C. Time

§28:80 Basic Points

§28:81 Before or After Preliminary Conference

§28:82 Discovery Cut-Off

28-3 PHYSICAL AND MENTAL EXAMINATIONS

D. Conditions and Scope

§28:90 Basic Points

§28:91 What Tests May be Taken

§28:92 Who May Accompany the Examinee

§28:93 Whether to Object to Attendance

§28:94 Who May Assist Examiner

E. Costs

§28:100 Cost of Examination

§28:101 Cost of Examinee’s Travel

III. Initiating Exam

§28:110 Notice for Exam

§28:111 In Controversy Requirement

§28:112 Notice of Availability for Exam

§28:113 Objections to Taking an Exam

§28:114 Obtaining an Order for an Exam

§28:115 Getting an Exam After Discovery Cut-Off

§28:116 A Second Examination

IV. Preparing for Exam

A. General Points

§28:120 Preparing Examinee

§28:121 Preparing Examiner

B. Hospital Record Authorizations

1. OVERVIEW

§28:130 Basic Rule

§28:131 Difference From General Discovery

§28:132 Copy to Examinee

§28:133 Expense of Copying

§28:134 Refusal to Provide Copy

2. PRIVILEGE AND IN CONTROVERSY REQUIREMENT

a. Plaintiffs

§28:140 Physician-Patient Privilege Waived

§28:141 Plaintiff’s Characterization Not Determinative

§28:142 Defendant’s Characterization Not Determinative

§28:143 Psychological Records

§28:144 Informed Consent Issue in Malpractice Claim

§28:145 Loss of Consortium Claims

§28:146 Wrongful Death

b. Defendants

§28:150 Introduction

§28:151 Plaintiff’s Allegation of Intoxication

§28:152 Plaintiff’s Allegation of Sexually Transmitted Disease

§28:153 Plaintiff’s Claim that Records Relevant to Accident Reconstruction