CHAPTER 11: PHYSICAL AND MENTAL EXAMINATIONS

What is a physical or mental examination?

An examination of a party's physical or mental condition that is at issue in a lawsuit.

Can minors be required to undergo physical or mental examinations?

Yes. Even minors may undergo an examination if requested.

What is the main purpose of a physical or mental examination?

To establish the truth about a plaintiff's alleged physical or mental injuries.

How can examinations discourage false lawsuits?

The possibility of an examination may discourage false or exaggerated injury claims.

What can an examination reveal about a plaintiff's complaints?

Inconsistencies between the plaintiff's complaints and the actual nature of the injury.

What can a physical examination determine?

Whether reported pain is imaginary or caused by a real injury.

What is a compulsory examination?

An examination that a court orders a party to undergo concerning a physical or mental condition.

What are four types of cases involving physical or mental examinations?

Personal injury, industrial accidents, paternity, and disability cases.

Why are examinations requested in personal injury cases?

To establish liability and determine the extent of the plaintiff's injuries.

Why are examinations requested in industrial accident cases?

To provide evidence about the nature and extent of accident-related injuries.

Why are examinations requested in paternity cases?

To help determine the identity of a child's father.

Why are examinations requested in disability cases?

To determine whether a plaintiff qualifies for disability insurance benefits.

How are most physical and mental examinations initially arranged?

Through mutual agreement between the attorneys.

How should an agreed examination be documented?

In a letter or formal stipulation filed with the court.

What happens if the parties cannot agree to an examination?

The requesting party files a motion for compulsory examination.

What is Rule 35?

The Federal Rule governing court-ordered physical and mental examinations.

What two requirements must be met under Rule 35?

Good cause must exist, and the condition must be in controversy.

What does good cause mean under Rule 35?

A legally acceptable reason for an examination; the information generally cannot be obtained another way.

What does in controversy mean under Rule 35?

The physical or mental condition being examined must be at issue in the lawsuit.

Does good cause require proving the entire case at trial?

No. The moving party does not have to prove the merits of the case.

Does Rule 35 always require a hearing before an examination is ordered?

No. A judge may decide based on an affidavit without holding a hearing.

What is an affidavit used for in a Rule 35 motion?

To provide evidence that the examination is necessary to establish claims or defenses.

Who has discretion to decide whether Rule 35 requirements are met?

The trial judge.

What notice is required for a motion for compulsory examination?

Notice must be given to the person being examined and all other parties or their attorneys.

What information must a motion for compulsory examination include?

Time, place, manner, conditions, scope, and examiner's name.

What happens when a judge grants a motion for compulsory examination?

The judge issues an order compelling the party to undergo the examination.

What is a proposed order?

A draft order submitted with the motion for the judge to review and potentially enter.

Can a judge change a proposed examination order?

Yes. The judge may change the number or type of examinations requested.

Can a court order additional examinations later?

Yes. Subsequent examinations may be ordered if further validation is necessary.

What must an examiner be under the Federal Rules?

Suitably licensed or certified.

Who selects the physician if the parties cannot agree?

The court makes the selection.

What should a paralegal do first when arranging an opposing party's examination?

Contact opposing counsel to determine whether they object to the examination.

What should a paralegal prepare if the opposing party objects?

A motion for compulsory physical examination and a proposed order.

What should a paralegal discuss with the physician or laboratory?

The examination's purpose, nature of the case, scheduling, and payment arrangements.

What should a paralegal consider when scheduling the examination's location?

The party may have to travel to the city where the lawsuit is filed.

What should a paralegal do after the examination?

Request the medical report, review it with the attorney, and arrange payment after approval.

How might a paralegal organize a medical examination report?

By chronology of events or by category of injury.

When should a paralegal notify a client about an opposing examination?

Immediately after opposing counsel requests the examination.

How can a paralegal explain the examination to a client?

Send a letter explaining its purpose, procedure, and details.

How should a paralegal help prepare a client for an examination?

Meet with the client to review the procedure and possible physician questions.

What should a client avoid discussing with the examining physician?

The facts of the lawsuit.

What medical history should a client review before an examination?

Doctors, hospitals, injuries, illnesses, medications, and dates of treatment or hospitalization.

What is a medical summary sheet?

A document helping the client recall medical history information before the examination.

Should a client take the medical summary sheet into the examination room?

Generally no. It could create doubt about the client's independent memory.

Can a client request their own physician's presence?

Yes, but the request must go through opposing counsel and requires the trial judge's permission.

What are possible sanctions for refusing a court-ordered examination?

Striking pleadings, staying proceedings, default judgment, or dismissal of the plaintiff's case.

What happens if a plaintiff refuses a court-ordered examination?

The court may dismiss the plaintiff's case.

What happens if a defendant refuses a court-ordered examination?

The court may enter a default judgment against the defendant.

What happens if a client misses an examination appointment?

The client may have to pay the physician's fee if the appointment must be rescheduled.

What happens when one party requests a copy of the examination report?

The opposing party may request all reports concerning the same condition, regardless of when they were made.

What is a potential risk of electronically delivered medical reports (ESI)?

Metadata may be unintentionally disclosed and used by opposing counsel.

Why should clients be cautious about requesting original ESI medical reports?

The report may contain metadata that reveals additional information to the opposition.

What is the Genetic Information Nondiscrimination Act (GINA)?

A law protecting against employment and health insurance discrimination based on genetic information.

How does GINA protect individuals from health insurance discrimination?

Insurers cannot use genetic test information to alter premiums or group contributions.

Can health insurers require genetic testing under GINA?

No. GINA prevents insurers from requesting genetic tests.

Can healthcare professionals request genetic testing under GINA?

Yes. GINA does not prevent healthcare professionals from requesting tests.

What exception does GINA provide for group health plans?

Plans may use limited genetic information to determine payments, requesting only the minimum necessary information.

What are the four purposes of compelling an examination?

Verify injuries, determine whether pain is real, identify inconsistencies, and discourage false or exaggerated claims.

What is the complete process if parties disagree about an examination?

Contact opposing counsel, file a Rule 35 motion, provide notice, establish good cause and controversy, and obtain a court order.

What are the main stages of a paralegal's examination responsibilities?

Scheduling, motion preparation, client preparation, coordinating the examination, obtaining reports, and reviewing results.