Nov 8

Defense Medical and Mental Health Examinations: A Reminder

Defense Medical and Mental Health Examinations: A Reminder

Alma Torlak-Celik, Esq.

One of the greatest tools a defendant has is the ability to require a physical or mental examination of a plaintiff (“IME”). Following a defense medical examination, a defendant is obligated to produce the IME report upon plaintiff’s written request. However, this also provides the perfect opportunity for a defendant to obtain early disclosure of vital information regarding the identity of plaintiff’s experts and opinions and reports from those experts.
The defense is obligated to produce any examination generated reports to plaintiff once plaintiff makes a written demand requesting the report pursuant to CCP §2032.610. This section states, in part:

“If a party submits to . . . a physical or mental examination . . . that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party: (1)  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. (2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.” Code Civ. Proc. §2032.610(a).

Once plaintiff serves a written demand pursuant to CCP §2032.610(a), defendant must deliver a copy of the requested report within 30 days after service of plaintiff’s written demand, or within 15 days of trial, whichever is earlier. Civ. Proc. Code §2032.610(b).

But critically, upon plaintiff’s CCP §2032.610 demand for production of the defense medical examination report, the defendant becomes “entitled at the time of compliance to receive in exchange a copy of any existing written report of any examination of the same condition by any other physician, psychologist, or licensed health care practitioner. In addition, that party is entitled to receive promptly any later report of any previous or subsequent examination of the same condition, by any physician, psychologist, or licensed health care practitioner.” Civ. Proc. Code §2032.640.

Too often, defense attorneys, when faced with a plaintiff’s written demand for a defense examination report, simply just turn over the defense medical examination report. Instead, once plaintiff makes a demand pursuant to CCP §2032.610, defense counsel should not only provide plaintiff the IME report, but should also simultatneously make a demand for the production of all of plaintiff’s existing and future written reports of examination pertaining to the same condition examined at the defense IME. This way, defense counsel can obtain early information on experts retained by the plaintiff, along with those experts’ opinions.