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Medical Examinations During Litigation - Important Info You Need to Know

When a personal injury lawsuit is filed, it is common for the defense attorney who is representing the insurance company to request an examination of you by a doctor who is selected by the defense.  There are some slight differences between the procedures for these exams, but the general course of practice is that a defendant is typically allowed examinations of the plaintiff by the same type of doctors who have treated the plaintiff or will be called to testify at trial by the plaintiff.  What this means is if the plaintiff has been treated by an orthopedist and an internist who may be expected to testify at trial, courts typically allow defendants to conduct examinations by an orthopedist and an internist.
 
Defense counsel usually contacts us and requests an examination by a doctor whom they identify.  Since we recognize a court will usually order the plaintiff to submit to such an examination, we typically consent to the exam conditioned upon the defense attorney's agreement to sign an order identifying the doctor who will conduct the exam, the date, time and location of the exam.  See Rule 4:10 of the Rules of Supreme Court of Virginia and Rule 35 of the North Carolina Rules of Civil Procedure.  The examining doctor will generate a report summarizing his or her findings.  We typically include a deadline for receiving that report in the Order which we send to the Court after it has been signed by both lawyers.  We may also define the scope of the examination in our order by specifically excluding any invasive test during an examination and excluding a completion of any documentation by our client in connection with any such exam.

Declining the Request for a Defense Medical Examination

If the plaintiff does not consent to an examination at the defendant's request, the defendant will typically file a motion asking the court to order the plaintiff to submit to an examination.  At that hearing the court will consider any issues raised by counsel regarding the exam such as whether the specific physician is appropriate to evaluate the plaintiff, whether the scope of the exam should be limited in some fashion, where the examination should be conducted, whether the plaintiff may videotape or record the exam.  (Courts have allowed recording examinations, providing the recording does not interfere with the exam.)  
 
In short, an examination at the request of a defense counsel is a typical part of any civil litigation and with some minor exceptions are typically performed within parameters established by counsel.  If counsel are unable to establish the parameters, the court will intervene to determine whether such an examination is appropriate and to define the parameters for the examination based on its own evaluation of the merits of arguments presented by either side in the case.
Randall E. Appleton
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia