Neb. Disc. R. 35, like
F.R. Civ. P. 35, permits discovery through a medical examination of a party under carefully
defined circumstances. The Rule, seldom the subject of appellate litigation,
may be dominated by more myths and misperceptions than other discovery
tools. Rule 35 does not provide for independent medical examinations or
independent medical examiners, and does not permit a defendant to require
that a plaintiff submit to an examination in every personal injury case.
These words do comprise Rule 35(a):
When 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 or her 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.
Rule 35 In Practice.
Inattention to Rule 35's requirements has permitted a practice to develop
that differs from the protocol of the Rule. Generally, medical examination
requests do not go to court. A defense lawyer typically phones the plaintiff's
counsel and says, I would like to have your client, Jane Doe, examined
by Dr. ________, my independent medical examiner. I have scheduled it
for this date. Will you get her there? The plaintiff's lawyer typically
responds, I will tell her to be there unless she has a scheduling problem.
Neither side typically uses Rule 35.
Yet, a medical examination is permissible only when the mental or physical
condition . . . of a party . . . is in controversy . . . .
might be available to a defendant in a personal injury case, but not
every personal injury case involves a controversy about the plaintiff's
mental or physical condition. A case involving a fractured forearm and
a simple intersection collision may create no controversy about the physical
condition of the plaintiff, although it may present a disagreement about
the manner in which the AMA rating guidelines should be applied to ascertain
the impairment rating assigned to an injury.
A plaintiff's physician might choose an open surgical procedure as
a proper treatment method instead of a laparoscopy. A controversy about
the treatment modality chosen by the physician might follow, but the controversy
in such a case does not involve the
plaintiff's condition. Instead, it focuses on the doctor's selected method of
treatment, and does not justify a Rule 35 examination of the plaintiff.
Perhaps an impaired plaintiff received emergency room care, then follow
up from a family physician who referred the patient to an orthopedic surgeon
who, in turn, chose noninvasive treatment methods. The injured party has
never been seen by, or referred to a neurologist, nor has she been diagnosed
with neurological problems. Does Rule 35 permit the defendant to select
a new medical specialty for the medical examination of the unwary plaintiff,
thereby setting the stage for a distracting defense claim at trial that
the plaintiff has never seen the right medical specialist? I doubt it.
Plaintiff's lawyers have been too lax at litigating the necessity for
Rule 35 examinations. As a result, defendants have become lax, too, at
understanding the good cause requirement imposed upon one seeking a medical
examination under the Rule.
The Good Cause Requirement.
Unless good cause is proven by the requesting party, a plaintiff need not
endure a hostile medical examination. In
Hall County ex. rel. Tejral v. Antonson, 231 Neb. 764, 437 N.W.2d 813 (1989), a paternity petition was filed alleging
that the defendant was the father of the relator's child. An order
was issued by the trial court, compelling the defendant to submit to a
Rule 35 examination. On appeal, the defendant contended that good cause
was not established. The Supreme Court reasoned that pleadings alone
may demonstrate that a physical or mental condition is in controversy, i.e.,
directly involved in the litigation as a material element of the cause
of action or defense, and establish good cause. Generally, the Rule's
requirements of in controversy and good cause are not satisfied by mere
conclusory pleadings; instead they may be fulfilled by a movant's
affirmative showing that the condition to be verified by the requested
examination is actually controverted and good cause exists for
ordering the examination.
Multiple factors must be proven to establish the requisite good cause for
a court ordered mental or physical examination under Rule 35. The motion
must specify, and good cause must be shown for these items.
- Proof that a mental or physical condition is in controversy;
- The necessity for an examination, as contrasted with a review of evidence;
- The identity of the examiner, and the suitability of his/her credentials
and ability to conduct a proper examination;
- The time, place, manner, condition, and scope of the examination and the
person or persons by whom it is to be made. The nature and extent of the
examination must be justified.
One may not, for example, simply by making a request and showing that the
plaintiff's organic brain tissue is at issue, readily get permission
to drill a hole in the plaintiff''s head to extract a biopsy.
Furthermore, a defendant is not entitled to choose examination by a neurologist
for the sake of introducing neurology into the case, where there is no
neurological medical issue present. Even x-rays have been referred absent
a showing of a need for them.
The term good cause has been carefully considered and thoroughly defined
in several contexts by Nebraska judiciary. For example, good cause must
be shown to justify service of more than 50 interrogatories. In a criminal
context, good cause must justify failure to bring a criminal defendant
to trial within six (6) months.
DeBries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979), the issue was whether good cause
existed to vacate or modify a judgment. Nebraska''s Supreme Court noted:
Webster's Third New International Dictionary defines good cause as
a cause or reason sufficient in law; one that is based on equity or justice
or that would motivate a reasonable man under all of the circumstances.
The meaning of good cause must be determined in light of all of the surrounding
circumstances. Therefore . . . it is our opinion that good cause . . .
means a logical reason or legal ground, based on fact or law . . . .
Good cause for a late offering of evidence that was not disclosed in a
civil pretrial order is required.
The good cause requirement for continuances have long required that an
application must be in writing and supported by an affidavit which contains
factual allegations demonstrating good cause or sufficient reason necessitating
postponement of proceedings. In modification proceedings following entry
of divorce decrees, good cause is demonstrated by a material change in
The good cause burden cannot be met by a casual affidavit from a lawyer
that a physical condition is in controversy. In some circumstances, perhaps
the requirement can be met with evidence from the proposed medical examiner
reciting that he/she has reviewed the relevant medical records and has
identified a mental or physical condition which is in controversy. The
affidavit should explain what controversy exists.
If there is a genuine dispute about the truthfulness of the affidavit,
or the quality of the affiant's personal knowledge to make the affidavit,
additional discovery, including depositions of the affiant, may be necessary
before a court passes on the request for a Rule 35 examination.
Defendant Has No Absolute Right to Choice of Medical Examiner Under Rule 35
The Nebraska Supreme Court has apparently not yet addressed the need for
an impartial medical examiner. However, the issue has come up many times
in other jurisdictions. Courts in several other states have held that
a defendant has no absolute right to the medical examiner of that party's
choosing. A Defendant may be ordered to select another doctor if evidence
exists that a doctor, designated by the Defendant to examine the Plaintiff,
has a history of bias or hostility toward plaintiffs seeking damages for
pain and suffering.
Hagmeier v. Consolidated Rail Corporation, 545 N.Y.S.2d 861 (A.D. 4 Dept. 1989). A well-documented history of advocacy
against injured litigants constitutes sufficient good cause to disallow
a Defendant designated medical examiner from examining an individual for
the purpose of testifying in litigation.
White v. State Farm Mut. Auto Ins. Co., 680 So.2d 1 (La. App. 3 Cir. 1996).
In the case of
Helton v. J. P. Stevens Company, 118 S.E.2d 791 (N.Car. 1961), the Supreme Court of North Carolina held:
It goes without saying the exclusive duty to make the selection rests with
the court. Neither party should have advantage in the selection. When
the examination is compulsory, there is obvious propriety in the selection
of the expert by the court rather than by one or both of the parties.
The court, in making the order and in designating the experts to execute
it, is serving the interests of neither the defendant nor the plaintiff,
but the ends of justice.
The Risks of Medical Examinations.
Protection from the independent medical examination process may be extremely
important in some select circumstances. Rule 35(c) provides, that, following
a medical examination, counsel for the party examined is entitled to the
medical records of the examining physician,
provided that, by making the request for records of the examination, the requesting
party waives the physician/patient privilege with respect to his/her own
Plaintiff's counsel could find herself in a situation where she has
allowed her plaintiff to be examined under Rule 35, has requested the
records of the examination, and has, therefore, waived the physician/patient
privilege of the plaintiff. Imagine the look on plaintiff's counsel''s
face if the medical records of the plaintiff's treating physician
disclose the confession of a crime!
A Recent Rule 35 Challenge.
John Doe sustained an alleged personal injury when his vehicle was struck
from the rear. His District Court filing pled personal injuries including
closed head injuries, physical and mental anguish and suffering, and headaches.
Doe has been treated by his family physician, an orthopedic surgeon, and
upon referral by the orthopedic surgeon, he was seen briefly by a neurologist.
After a short interview, the treating neurologist determined that the
injury was more appropriate for consideration by a neuropsychologist who
performed non-invasive neuropsychological testing. This testing disclosed
the existence of a closed head injury.
Defense counsel requested that a Rule 35 medical examination be conducted
by a neurologist well known to personal injury lawyers. Plaintiff's
counsel refused to consent and a motion was filed along with an affidavit
from the neurologist who recited he had reviewed the plaintiff''s
medical records. The neurologist acknowledged he is not competent to administer,
interpret or evaluate neuropsycholocial tests, but he opined the plaintiff
should be examined by a neurologist.
Plaintiff's lawyers contested the motion, claiming they should be permitted
to conduct discovery about the truthfulness of the affidavit, and the
objectivity of the proposed defense physician. The plaintiff's lawyers
issued a subpoena duces tecum for the physician's appointment secretary,
and requested his professional calendars to establish the amount of time
devoted to medical examinations. They also issued a subpoena to the defense
neurologist, commanding that he appear at the hearing on the defendant's
motion for a Rule 35 examination.
The subpoenas got the attention of defense lawyers. They moved to quash
the subpoenas, claiming they would (a) be burdensome to the physician,
(b) invade the patient/physician privilege that the doctor claimed existed
between himself and the patients he had independently examined previously,
and (c) that the subpoena was harassive of the doctor. The trial court
overruled the motions to quash the subpoenas, and commanded that the depositions
of the records custodian and the physician proceed.
These judicial rulings produced an astounding reaction by defense counsel.
Immediately after the court ruled, the defense lawyer withdrew the proposed
neurologist witness as the examining physician, requested leave to delay
trial, and advised the court that the defense would have to find another
Plaintiff's lawyers can substantially assist their clients in personal
injury cases by studying the requirements of Rule 35. Medical examinations
should not be scheduled or permitted lightly, the credentials and objectivity
of proposed physician examiners should be considered carefully, and the
necessity, terms, scope and condition of the proposed examination should
be challenged in court where appropriate.
Lawyers should not assume that defense lawyers are entitled to choose a
doctor they like, require an injured plaintiff to travel, and give the
defense a hired witness to controvert the plaintiff''s claims at trial.