Requests for physical or mental examinations of an opposing party are governed by Rule 204.1 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 204.1. To be entitled to an examination, a movant must demonstrate that (1) good cause exists for the examination and (2) the party’s condition is in controversy. Id. These requirements may not be satisfied by conclusory allegations in the movant’s pleadings or by mere relevance to the case. Good cause for a medical examination requires the movant to demonstrate: (1) the examination is relevant to genuine issues in the case; (2) a reasonable nexus exists between the condition alleged and the examination sought; and (3) the desired information cannot be obtained through less intrusive means. In re Offshore Marine Contrs., Inc., 496 S.W.3d 796, 798 (Tex. App. Houston 1st Dist. 2016).
Requesting such examinations has become more common over the years especially when the injury claimed is a traumatic brain injury (TBI). In a recent TBI case, the court held, “When a plaintiff elects to put his neuropsychological condition in controversy through expert testimony, the requested examination is not invasive, intrusive, or uncomfortable, and less intrusive means will not yield the desired information, even-handedness and fairness require granting the defendant’s requested examination.” Id at 802.
There are two primary factors that must be weighed when deciding whether to request an independent medical examination (IME) of a plaintiff. First, the likelihood that the IME will successfully rebut the Plaintiffs’ alleged claim. Second, whether it is in the best interest of the defense to confirm the allegations of the Plaintiff in order to justify the final settlement.
A critical point in evaluating this second factor is the fact that the results of the examination will not be privileged once they are complete. As seen in Teran v. Longoria, “if a medical expert is hired for examination and treatment, or for consultation in connection with improving health of person, then the expert’s identity and records are not protected from discovery.” Teran v. Longoria, 703 S.W.2d 300, 301 (Tex. App.-Corpus Christi 1985, orig. proceeding). This can pose a problem if the results of the examination are not favorable to the defense.
One way to access and minimize the risk of an unfavorable IME is to obtain a consulting expert’s opinion first. Due to the risk and expense, generally, IME’s should be requested sparingly and only in instances where (1) there is a high level of probability that the results will be favorable to one’s defenses or (2) further information about a Plaintiff’s alleged injury is needed for settlement evaluation purposes.
So in conclusion, remember to choose wisely when requesting an IME.