The Interplay Between Civ. R. 35 and Civ. R. 37
Discovery sanctions apply only to the specific instances enumerated in the discovery rule. They do not apply to the attorney fees and expenses incurred by a party in obtaining an order for a physical or mental examination.
Civ.R. 35 allows a party to seek an order requiring an opposing party to submit to a physical or mental examination “for good cause shown.” If the trial court orders a party to submit to a physical or mental examination and he or she refuses to comply, the party may be subject to sanctions under Civ.R. 37 (B) (2), including the payment of the other party’s reasonable attorney fees. However, there is nothing in Civ. R. 35 that authorizes a trail court to award a party his attorney fees and expenses in obtaining such an order.
The Civil Rules do not provide for an award of expenses associated with making or opposing a motion to compel attendance at a defense mental or physical examination. Failure to comply with an order may be sanctioned. However there is no provision for awarding expenses to procure the order.
The drafters of the Civil Rules clearly and deliberately chose not to make the types of discovery sanctions, set forth in Civ. R. 37 (A), available to a party seeking an order for a physical or mental examination under Civ. R. 35. This decision is not surprising given that an order requiring a party to submit to a physical or mental examination is generally more intrusive than other discovery orders.
Using the Plaintiff Medical Exam to Prove Permanency
More claimant practitioners are using the plaintiff medical exam (PME) to obtain reinforcement of the testimony of the principal treating physician. It’s interesting to note that defense lawyers never refer to our witnesses as “independent” medical examiners. Many of them take offense at any mention of their highly paid advocates as anything other than “independent.”
If there is no problem with the judge, it is best to have your PME scheduled around the same time as that of the DME.
Most defense medical exams last a perfunctory 10 minutes. However, this doesn’t prevent defense doctors from harboring medical views that are rigidly dogmatic. Your PME doctor should be much more through.
While slight gaps in testimony between your two physicians can potentially be exploited, the gains outweigh. If the regular doctor is unable to testify because of illness or family emergency, it is good to have the PME physician ready to step in.