In personal-injury cases trial courts do not grant motions for a party to undergo a mental or physical examination as a matter of right. Instead, Texas Rule of Civil Procedure 204 gives a trial court the discretion to order an exam only if the movant shows good cause and demonstrates that the other party’s mental or physical condition is in controversy.
“Good cause” and “in controversy” are separate but related concepts. In Coates v. Whittington (1988), the Texas Supreme Court held that a party could establish good cause under the predecessor version of Rule 204 by showing three things: The exam is relevant to the issues generally in controversy in the case, there is a reasonable nexus between the condition in controversy and the exam sought, and it is not possible to obtain the desired information through means less intrusive than a compelled exam.
Coates was a products-liability case involving a plaintiff who suffered severe second-degree burns to her arm when she inadvertently sprayed her arm with oven cleaner while cleaning a stove-top. The high court’s opinion noted that the defendant in Coates argued that the plaintiff’s pre-existing depression and allegation of mental anguish created good cause for a mental exam of the plaintiff.
The Supreme Court, however, worried that allowing the exam “would open the door to involuntary mental examinations in virtually every personal injury suit.” The court barred the exam, reasoning that “a routine allegation of mental anguish or emotional distress does not place the party’s mental condition in controversy.” The court also noted that the plaintiff had not sought any type of psychological treatment as a result of the incident and that she did not propose to offer any psychiatric or psychological testimony to prove her mental anguish at trial.
Likewise, in In Re Caballero (2000), Corpus Christi’s 13th Court of Appeals held that a trial court abused its discretion in ordering the plaintiff to undergo a gynecological exam, even though the plaintiff alleged that the defendant’s false accusation of shoplifting had caused her to bleed vaginally and to undergo a hysterectomy.
On the other hand, in Williams v. Sanderson (1995), Beaumont’s 9th Court of Appeals held that deposition testimony in a car wreck case that the defendant had gotten a piece of aluminum embedded in his eye two years before the wreck created good cause for a court-ordered eye exam, even though a routine allegation of failing to keep a proper lookout generally would not put a party’s eyesight in issue.
The rule allows an exam by a psychologist, other than in family law cases, “when the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist’s records for possible use at trial.” In In Re Transwestern Publishing Relators Co. (2002), Fort Worth’s 2nd Court of Appeals held that, when a plaintiff designated a psychologist to testify concerning the plaintiff’s mental condition, the defendant no longer had to show that the plaintiff’s mental condition was “in controversy,” but still had to show “good cause.”
The text of Rule 204 specifically limits physical and mental exams to qualified physicians and psychologists. This appears to limit exams to those conducted by experts who can pass muster under the rules of evidence governing expert testimony and the Texas Supreme Court’s opinion in E.I. du Pont de Nemours & Co. v. Robinson (1995).
The rule allows a physician to conduct physical and mental exams but allows a psychologist to conduct only mental exams. The rule does not mention exams by any specialists other than physicians and psychologists. In Moore v. Wood (1991), Houston’s 1st Court of Appeals refused to allow the exam of a plaintiff by a vocational rehabilitation specialist on the grounds that the specialist was not a physician or a psychologist.
Rule 204 requires a “detailed written report” of the exam that sets out “the findings, including the results of all tests made, diagnoses and conclusions, together with like reports of earlier examinations of the same condition.” After delivery of this report, the party causing the exam may request that the party being examined produce “a like report of any examination made before or after the ordered examination of the same condition.” The rule allows the trial court to exclude the examiner’s testimony at trial if the examiner fails to make a report.
The rule applies to exams made by agreement of the parties, unless the parties specifically agree otherwise. The party undergoing examination is well advised to enter into a detailed letter agreement with the party moving for the exam.
The agreement should set out specific protocols concerning the following: 1. the examiner’s identity; 2. the timing and length of exam; 3. the specific testing, diagnostic exams, samples and specimens permitted and not permitted; 4. the types of questions permitted and not permitted during testing; 5. the types of audiotaping and/or videotaping of the exam permitted and not permitted; 6. the presence of other parties, such as nurses or attorneys at the exam; 7. the deadline for the examiner’s preparation of a report; and 8. the deadline for the presentation of the examiner in a deposition following the exam.
In Simmons v. Noble (1995), Texarkana’s 6th Court of Appeals held that there is no automatic right for the person being examined to have an attorney present during the exam and that the trial court should determine the issue in its discretion on a case-by-case basis. The dissent in Simmons argued that an attorney’s presence at a court-ordered exam is just as important as an attorney’s presence in a deposition due to “the adversarial status of the examining doctor.”
Rule 204 specifically prohibits the party whose physical or mental condition is in controversy from commenting to the judge or jury concerning the party’s willingness to submit to an exam or on the right or failure of any other party to seek an exam.
The rule requires a party to make any motion to compel an exam no later than 30 days before the end of any applicable discovery period. The order “must be in writing and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
In Employers Mutual Casualty Co. v. Street (1986), Fort Worth’s 2nd Court of Appeals held that the defendant did not have an absolute right to choose the identity of the examining physician and it was within the trial court’s discretion to choose an independent and neutral physician to conduct the exam.
Plaintiffs in personal-injury cases should not necessarily fear court-ordered physical and mental exams. If an agreement or court order puts reasonable safeguards in place, such exams sometimes confirm the true extent of a plaintiff’s injuries, and spur resolution of a case sooner than otherwise.
Quentin Brogdon is an attorney with the Law Offices of Frank L. Branson in Dallas. He is board certified in personal-injury trial law and in civil trial advocacy, and he is an associate member of the American Board of Trial Advocates. He was president of the Dallas Trial Lawyers Association in 2008. His e-mail address is email@example.com.