Day on Torts
The Tennessee Supreme Court has issued an opinion interpreting Rule 35 of the Tennessee Rules of Civil Procedure.
Rule 35 is the rule the permits a party to have a physician of the party’s choice examine the adverse party. Unfortunately, it is often referred to as an independent medical examination, and indeed the opinion mistakenly refers to it as such. Rule 35 exams usually have the same degree of objectivity as a mother opining on the character and physical appearance of her only son.
But on to substance. Very few civil procedure cases find their way to the Tennessee Supreme Court (exception: Rule 56) and when one does get there we need to read it. This is true even in this case where the plaintiff was pursuing a worker’s compensation claim and the issue is primarily covered by the Worker’s Compensation Act.
The bottom line for examinations under the Act: "In summary, we hold that an employer has a statutory right to compel an injured employee to undergo a medical evaluation by a physician of the employer’s choosing. The employee may challenge the request as unreasonable in light of the circumstances. If the trial court determines the request is reasonable, the employee must submit to a medical evaluation conducted by the physician of the employer’s choice. … If the employer’s request is unreasonable, the trial court should deny the request, but must specifically state its reasons in the record."
The Court’s opinion makes it clear that Rule 35 examinations sought in cases not subject to the Act are subject to a different standard: "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."
Read the entire opinion in Billy Overstreet v. TRW Commercial Steering Division and State of Tennessee Dept. of Labor Workers’ Compensation Division Second Injury Fund, Sue Ann Head, Administrator, M2007-01817-SC-R10-WC (Tenn. June 17, 2008) here.