PHYSICAL AND MENTAL EXAMINATIONS
(a) Order for Examination. In any case in which the amount in controversy exceeds $100,000 actual damages, and the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made, and shall be delivered to the person or persons making the examination.
The physician of the party to be examined may be present at the examination. Unless the parties agree, or the court for good cause shown determines otherwise, the examination shall be in the county where the person to be examined, or his physician, resides. Special consideration shall be given to the convenience of the person to be examined and that of his physician in setting the time and place of the examination, and reasonable consideration shall be given to the convenience of the examining physician. Upon reasonable objection to the physician designated to make the examination, and if the parties shall fail to agree as to who shall make the examination, the court may designate a physician; but the fact that a physician was so designated shall not be admissible upon the trial.
The language in the first paragraph reflects the existing Federal Rule on the subject, except the $100,000 limitation. The language changes are minor and only to clarify the operation of the rule. The second paragraph is new and is not in the Federal Rule. It establishes limitations on the use of the device, particularly that the party examined may have his physician present during the examination and that the examination may take place only in the county of residence of the patient or his physician. The new material also permits objection to be made to the examining physician.
Notes to 1986 Amendment:
The Rule as originally written imposed some absolute restrictions on the location and timing of a medical examination. The amendments give the court discretion to make exceptions to those requirements if justified by the facts.
(b) Report of Examining Physicians.
(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled to request and receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.
(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.
This is the language of the current Federal Rule 35(b) and authorizes the party examined to request a copy of the report of the examination ordered by the court. Upon delivery the party who obtained the order for the physical examination may obtain from the examined party, copies of all of its reports on the same subject. Conceivably that party could obtain the same information by deposing the physicians who made other examinations, but it certainly is easier and more efficient to provide for the automatic exchange of medical reports on the same condition. The purpose of the rule is to encourage settlement when it is apparent that there is no significant difference in the medical opinion of the respective experts.