To Examine or Not to Examine

Discovery during litigation provides powerful tools that allow each side to discover a wealth of information about the other. But how do you decide whether to use a particular tool? For example, when a plaintiff is claiming a physical or mental injury, should the defense always request its own physical or mental exam of the plaintiff? Such a request is available under CCP §§2032.010-2032.650, and it may be advantageous, but it is also risky.

Sure, an exam by a defense expert provides opportunities to:

  • Choose your own physician to examine the plaintiff and evaluate the claimed injuries;
  • Get information on other relevant injuries;
  • Potentially access written medical reports about the plaintiff that would otherwise be protected as work product; and
  • Improve the credibility of the defense medical expert by actually having examined the plaintiff.

But, as happens with most things, there are also significant downsides to requesting an examination, including the time and cost involved and the ever-present possibility that the medical opinion will not be as favorable as hoped. Even if it is completely favorable, the plaintiff may argue that the defense “bought” a favorable medical opinion by conducting its own exam.

So, what’s a defense attorney to do? Consider using the plaintiff’s own physician to establish limitations on injuries or damages instead of requesting an examination.  In any event, always depose the plaintiff’s treating physicians before deciding whether to notice a medical exam.

For more on physical and mental examinations, including strategy and procedures, see California Civil Discovery Practice, chap 10 (4th ed Cal CEB 2006).

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