Independent medical examinations The exam is theirs. Prepare for it.

An independent medical examination is a defense examination: the doctor is chosen, scheduled, and paid by the party being sued, and the word independent appears nowhere in the statute that creates it. In a California personal injury case a defendant may demand one physical examination without asking a judge, under Code of Civil Procedure section 2032.220, and the statute sets what the demand must state. Your attorney or that attorney's representative may attend, observe, and record what is said, and afterward you can demand a copy of the report.

Why the defense gets to examine you

Discovery is the formal exchange of information before trial. Section 2032.020 lists a physical or mental examination as one method of it, available against a party whose mental or physical condition is in controversy in the action. Once you sue for a back injury, your back is in controversy. That is the trade the lawsuit makes.

The same section limits who may perform it. A physical examination shall be performed only by a licensed physician or other appropriate licensed health care practitioner. A mental examination shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. Nothing in this chapter of the Discovery Act makes the examiner neutral, and nothing requires them to treat you. They are not your doctor and the visit is not medical care.

What the exam demand has to include

Section 2032.220 is the whole of what a defendant gets without a court order. A demand that misses one of the requirements below is answered with a written objection.

The response deadline is the one that costs people. Section 2032.240 provides that a plaintiff who fails to serve a timely response waives any objection to the demand. The court may relieve that waiver only if a compliant response is later served and the failure came from mistake, inadvertence, or excusable neglect. The same section lets the defense move to compel, meaning ask the court to order the exam, and requires the court to impose a monetary sanction on whoever loses that motion, absent substantial justification.

Second and mental exams need a judge

Anything beyond that single demanded physical exam requires leave of court, meaning a judge's permission, under section 2032.310. The motion must specify the time, place, manner, conditions, scope, and nature of the exam and the identity and specialty of the examiner, supported by a meet and confer declaration, a sworn statement that the lawyers first tried to resolve it between themselves. Section 2032.320 then says the court shall grant that motion only for good cause shown. An order granting an exam shall specify who may perform it along with the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature.

Section 2032.320 also contains the provision that decides most mental examination fights. If a party stipulates, meaning formally agrees, that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed, and that no expert testimony about that usual distress will be offered at trial, the court shall not order a mental examination except on a showing of exceptional circumstances. That is a choice with a price, and it is made with your attorney.

One more provision is worth knowing before you agree to travel. If the place of examination is more than 75 miles from your residence, an order may issue only if the court finds good cause for the travel and conditions the order on the moving party advancing your reasonable travel expenses and costs.

Who may attend and record the exam

Section 2032.510 is the part of this chapter that clients are least likely to have heard of and most likely to need. The attorney for the examinee, or that attorney's representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.

The statute then sets the rules of the room. The observer may monitor but shall not participate in or disrupt the exam. A representative who is not the attorney has to carry a writing signed by the attorney identifying them. If in the judgment of the observer the examiner becomes abusive or undertakes unauthorized diagnostic tests, the observer may suspend the exam so a motion for a protective order, a request that the court step in, can be made. If the observer starts participating or disrupting, the examiner may suspend it for the same reason in reverse. Whoever unsuccessfully makes or opposes that motion pays a monetary sanction unless the court finds substantial justification.

A mental examination has its own recording rule. Section 2032.530 provides that the examiner and the examinee shall have the right to record a mental examination by audio technology, and that the section does not alter existing case law on the presence of the examinee's attorney or other persons by agreement or court order. In a mild traumatic brain injury case that recording is often the only account of what the questions were, which is why our page on proving a mild TBI treats the testing session as evidence in its own right.

What asking for the report costs you

Under section 2032.610, the party examined may demand a copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner. The demand also reaches copies of reports of all earlier examinations of the same condition by that or any other examiner. The reports are due within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.

Subdivision (c) is the trade. By demanding the report you waive work product protection both for your own examiners' writings and reports and as to the taking of their testimony. Work product is the protection that keeps a lawyer's and a retained consultant's material out of the other side's hands. The waiver is usually worth it in a case that is going to be tried, and it is a decision to make on purpose rather than by reflex.

How to conduct yourself in the room

1. 1
   Arrive on time and bring nothing you were not asked to bring

   No stack of records, no summary, no notes about your symptoms. Whatever you hand over becomes part of the examination the defense paid for.

2. 2
   Answer the history accurately and completely, then stop

   Prior injuries and prior treatment belong in the answer, because a prior problem that comes out later is worth far more to the defense than it is worth today. Answer the question that was asked and do not fill silence.

3. 3
   Do what you can do, and stop where it hurts

   Do not perform, in either direction. An exam where someone pushes through pain and an exam where someone exaggerates both end up in the same report, described the same way.

4. 4
   Note the clock

   Write down when the examiner walked in and when they walked out, and what testing was performed. A 12 minute exam described later as thorough is a fact your attorney can use.

5. 5
   Say nothing about the case, the crash, or the lawyers

   Not to the examiner, not to the receptionist, not in the hallway. The history is medical; fault is not.

6. 6
   Debrief the same day

   Tell your attorney what was asked and what was done, and turn over the recording. Memory of that hour fades quickly, so do it on the drive home.

When the exam rules are different

• There is no lawsuit yet. This chapter belongs to discovery in a pending action. Before a case is filed, an adjuster asking you to see a doctor is asking, and our post on the five documents an adjuster sends covers what else arrives in that same envelope.
• Your own insurer asks. An examination requested by your own insurer under an uninsured motorist or medical payments claim comes from your policy terms rather than from the Discovery Act, and the rules above do not automatically apply to it.
• It is a workers' compensation claim. That system runs its own medical evaluation process under different statutes. If you were hurt on the job and also have a claim against someone other than your employer, you can end up in both systems at once.
• The demand is defective and you say nothing. Waiver under section 2032.240 does not depend on whether the demand was proper. A written response inside 20 days preserves the objection; silence throws it away.
• The exam is scheduled before you have finished treating. Nothing stops it, and a snapshot taken mid-treatment is often the point. The counterweight is a complete treatment record and a treating physician who has written down what happened and what is still ahead.

What an independent medical examination is

It is one exam, demanded by the other side, performed by a doctor they picked, inside limits the Legislature wrote down. Read the demand against the table of requirements above, answer it in writing inside 20 days, bring an observer and a recorder, tell the truth about your history, and ask for the report. Handled that way, the exam becomes one more piece of evidence in a file rather than the event that decides a case.

If a demand has arrived with a date on it, get it in front of an attorney before that date, not after. Our page on Los Angeles car accident claims covers how the rest of a case is built, our post on what a case is worth explains what these records end up proving, and there is no fee unless we recover.