Supreme Court Increases Use Of Medical Examinations By Defense

Texas Supreme Court (1)New Case To Make Often Exams Commonplace?

The Texas Supreme Court ruled on Friday that a trial court abused its discretion when it denied a defense medical examination (DME) of the plaintiff in a personal injury case. It may have opened the doors to a flood of DME requests.

In Re H.E.B. Grocery Company, L.P., Relator was a mandamus proceeding. The plaintiff, Daniel Rodriguez,  filed suit after he tripped over a loose metal plate in the parking lot of a H.E.B. grocery store.  He injured his spinal cord, neck, face, shoulder, arm and knee and underwent two spinal surgeries. Complicating the case, the plaintiff later filed a lawsuit after a Sam’s club employee dropped an artificial turf roll on his head and further injured his neck and head.

H.E.B. retained an orthopedic surgeon as its expert. After conducting a records review, the doctor opined that Rodriguez’s injuries were preexisting and that the MRI taken one month after the fall (and relied upon by the plaintiff’s surgeon) was inconclusive. H.E.B then moved the court to allow the expert to examine Rodriguez. The court denied the motion without explanation, which was affirmed on appeal.

The Texas Supreme Court ruled that the exam request satisfied Texas Rule of Civil Procedure 204.1, which states that the court may grant a request for a physical or mental examination of another party if “(1) ‘good cause’ exists for the examination, and (2) the mental or physical condition of the party the applicant seeks to examine ‘is in controversy.’”

The Court explained that the purpose of the good-cause requirement is to “balance the movant’s right to a fair trial and the other party’s right to privacy.”   The movant must

  1. Show that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence;
  2. Establish a reasonable nexus between the requested examination and the condition in controversy; and
  3. Demonstrate that the desired information cannot be obtained by less intrusive means.

Why this case is important to auto and truck crash injury claims

The new standards for demonstrating good cause are relatively open-ended and easy to prove. It is hard to imagine a request that will not be able to satisfy the three requirements.

It will be even more important than ever for the plaintiff’s attorney to resist these requests. Arguments could be made that it is not clear how much effect the Court placed on the plaintiff’s intervening injury or the court’s reasoning in refusing the DME. If it is granted, counsel must establish parameters as to what exams and tests will be performed, whether the attorney or another medical professional can attend, whether it can be videotaped, how soon before the discovery deadline it occurs, when the doctor’s deposition will be scheduled, whether plaintiff’s expert can amend his report, whether plaintiff’s expenses will be reimbursed, etc.

A medical examination is supposed to be a credible report that assists the jury. However, if the defense hires a physician well-known for siding with defendants, the report could be biased.  If the DME is conducted for the sole purpose of producing litigation evidence that supports the defense — not to treat the patient or to offer a neutral opinion as to the cause and extent of the patient’s injuries — our system of justice falters.

Berenson Injury Law has been helping automobile and truck crash victims for the past 36 years. Please contact our office if you have been injured in a collision and need legal assistance.

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