Turning the Tables: Using Demands for IME Reports to Your Advantage

By: Davis J. Reilly

Many defense attorneys operate under the erroneous assumption a practitioner’s report following a physical or mental examination under California Code of Civil Procedure, section 2032.220 or 2032.310, must be provided to counsel for the examinee within 30 days of the examination. This is not so. A close review of the applicable statutory authority reveals an affirmative written demand is required before a duty arises for the examining party to produce the report. Further, this demand has the significant effect of waiving the examinee’s privilege to her own retained expert’s writings on the examined subject.

“If a party submits to, …, a physical or mental examination in compliance with a demand … that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party: (1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner. (2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.” (See Cal. Civ. Proc., § 2032.610(a).) Only after the written demand is made, does the 30 day clock start to run on its delivery. (See Cal. Civ. Proc. §2032.610(b).) The requirement for this affirmative demand is apparent because this demand has significant ramifications. “By demanding and obtaining a report of a physical or mental examination … the party who submitted to, or produced another for, a physical or mental examination waives in the pending action, and in any other action involving the same controversy, any privilege, as well as any protection for work product … that the party or other examinee may have regarding reports and writings as well as the testimony of every other physician, psychologist, or licensed health care practitioner who has examined or may thereafter examine the party or other examinee in respect of the same physical or mental condition.” (See Cal. Civ. Proc., § 2032.630.)

By way of example, in a recent matter, a minor Plaintiff made a demand for a copy of our psychologist’s report following a mental examination. Our office produced the report in a timely fashion and subsequently demanded Plaintiff produce all reports prepared by her retained psychologist related to the Plaintiff’s mental condition. Plaintiff’s waiver of all privilege to her psychologists’ reports were significant as early in the litigation Plaintiff sought a report from a psychologist. She thereafter abandoned that expert and decided to retain an alternate expert for trial (we can only assume this was an attempt to obtain a more favorable evaluation). Plaintiff claimed that, having never disclosed her as an expert, the first psychologists report was protected as work product. Plaintiff refused to produce the demanded report and a successful motion to compel followed.

While the circumstances described above may be somewhat specific, a Plaintiff’s waiver can also be beneficial in a broader context. For instance, the waiver would allow a Defendant to learn the identity and opinions of Plaintiff’s retained expert witness prior to the statutory disclosure date. Further, in the event a Defendant has yet to acquire all relevant medical records, the waiver could allow a Defendant to demand Plaintiff produce all related records authored by a treating physicians.

To ensure receipt of all documents to which they are entitled, Defendants should be sure to serve a demand for a simultaneous exchange when a Plaintiff demands and receives a copy of a written report following a physical or mental examination of the Plaintiff. (See Cal. Civ. Proc. §2032.640.) In addition to a demand pursuant to Civil Procedure, section 2032.640, it is recommended Defendants serve a targeted set of special interrogatories seeking the identities of all healthcare practitioners who have treated Plaintiff for the subject condition and a set of Requests for Production of all reports produced by the identified healthcare practitioners. These requests will assist in ensuring Defendants receive all relevant documents and information. Receipt of these reports can reveal a wealth of information and could assist in evaluating a case’s value in preparation for trial.