Section 4010. Physical and Mental Examination of Persons

(a)(1) As used in this rule, ‘‘examiner’’ means a licensed physician, licensed dentist or licensed psychologist.

(2)(a) When the mental or physical condition 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 an examiner or to produce for examination the person in the party’s custody or legal control.

Official Note

The examination may include blood or genetic testing.

(3) 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.

(4)(i) The person to be examined shall have the right to have counsel or other representative present during the examination. The examiner’s oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.

Official Note

Ordinarily, the facts giving rise to liability are not germane to an examination and the information which the examiner seeks should be limited to facts of liability germane to the issue of damages.

(ii) Subdivision (a)(4)(i) shall not apply to actions for custody, partial custody and visitation of minor children.

(5)(i) The party who is being examined or who is producing for examination a person in the party’s custody or legal control may have made upon reasonable notice and at the party’s expense a stenographic or audio recording of the examination. Upon request and payment of reasonable cost, the party who caused the recording to be made shall provide each other party with a copy of the recording.

(ii) Subdivision (a)(5)(i) shall not apply to actions for custody, partial custody and visitation of minor children.

(b)(1) If requested by the party against whom an order is made under this rule or the person examined, the party causing the examination to be made shall deliver to the requesting party or person a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows inability to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court shall exclude the examiner’s testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

(3) Subdivision (b) applies to an examination made by agreement of the parties, unless the agreement expressly provides otherwise. It does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.

The provisions of this Rule 4010 amended November 20, 1978, effective April 16, 1979, 8 Pa.B. 3551; amended April 24, 1998, effective July 1, 1998, 28 Pa.B. 2131. Immediately preceding text appears at serial pages (228835) to (228837).

Notation

Explanatory Note

Prior Rule 4010 has been substantially revised to conform closely to Fed. R.Civ.P. 35. It makes the following changes in the prior practice:

(1) The Federal Rule covers a party and also a person in the custody or legal control of a party. This expansion is incorporated in the amendment.

(2) The amendment introduces a specific requirement of ‘‘good cause shown’’ and notice to all parties and to the person to be examined. Actually, this makes no change in present practice. Good cause and notice were implicit in the prior Rule, which required a showing that the physical or mental condition was in controversy in the action. Good cause and notice are intended to protect parties against undue invasion of their rights to privacy.

(3) Subdivision (b)(1) gives the party against whom the order is issued the right to require the examining physician to give him a report of the results of all tests made and his diagnoses and conclusions, including like reports of all earlier examinations of the same condition to which the examining physician may have had access. This would include the results of X-rays, cardiograms or other tests. If such a report is requested and received, the recipient must reciprocate, on request, and deliver a copy of all prior or later examinations made by his physician. Sanctions are provided for refusal. This follows Fed. R.Civ.P. 35(b)(1).

(4) Subdivision (b)(2) provides that if a report is requested and received under subdivision (b)(1) or if the deposition of the examining physician is taken, the party examined waives any privilege he may have concerning the testimony of anyone who may have examined him earlier or thereafter. This follows Fed. R.Civ.P. 35(b)(2).

(5) Subdivision (b)(3) provides that examinations made by agreement of the parties may be subject to production under the Rule and that discovery of the report of an examining physician or deposing him under other Rules is not precluded. This follows Fed. R.Civ.P. 35(b)(3) as amended in 1970.

In practice, medical reports, as part of the special damages, are routinely submitted during settlement discussions, sometimes even before suit is commenced. There was little litigation over prior Rule 4010 and there should be relatively little under the amended Rule.