It is not uncommon in personal injury litigation for the defense to take an opportunity to ask that a plaintiff be examined by a non-treating physician for the purpose of providing an opinion as to the relationship between the accident/event that is the subject of the litigation and the injury and treatment being claimed by the plaintiff. Most often, the examination is referred to as an “IME” which is short for an “Independent Medical Examination.” Tennessee Rule of Civil Procedure 35 permits these types of examinations.
Rule 35 of the Tennessee Rules of Civil Procedure allows a party to request a physical or mental examination of a party whose condition is in controversy. A Rule 35 exam is a court-ordered physical or mental examination of a party whose health condition is relevant to the case. Rule 35.01 specifically states:
[w]hen the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
The decision to order a Rule 35 exam is within the discretion of the trial court. "Once the moving party establishes a mental or physical condition 'in controversy' and 'good cause,' the rule gives the trial court discretion to order a medical examination." Overstreet v. TRW Commercial Steering Div. 256 S.W.3d 626, 638 (Tenn. 2008). The "in controversy" and "good cause" requirements of this rule balance "the interest of personal privacy with the interest of truth and justice." Id.
There is not a lot of case law concerning Rule 35 exams. While this issue is litigated from time-to-time, the Tennessee Court of Appeals, in Odom v. Odom, 2001 Tenn. App. Lexis 881, noted "[f]ew precedents construing Tenn. R. Civ. P. 35 exist because physical and mental examinations of parties or persons in the custody of a party are usually done by agreement without the intervention of the courts." When parties do not reach an agreement on the matter, however, a request for a medical exam may be made pursuant to Rule 35. Roach v. Dixie Gas Co., 371 S.W.3d 127, 144 (Tenn. Ct. App. 2011).
Rule 35 exams can play a critical role in litigation by providing objective assessments of a party’s physical or mental condition. The exams can help to ensure that injury claims are supported by reliable information.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator and his practice areas include criminal defense and civil litigation.
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