Independent medical examinations are a “hands on” way to evaluate the injuries claimed by a plaintiff. With the ability (with some limits) of hand-picking the examiner, an IME is a great way to strengthen the defense of a given case.
When a plaintiff has placed his medical condition in controversy, and the defending party has good cause, an independent medical examination of the claimant should be allowed.
According to Rule 35 of the Nebraska Rules of Discovery, “[w]hen the mental or physical condition 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 one or more physicians, or other persons licensed or certified under the laws to engage in a health profession.”
What constitutes “good cause” for an IME? It is worth noting that Rule 35 is to be construed liberally in favor of allowing discovery. Where a plaintiff has affirmatively placed in controversy her mental condition, it is appropriate for a court to order an examination. However, whether to order a Rule 35 examination rests in the sound discretion of the court. In determining whether the moving party has satisfied the “good cause” requirement of Rule 35, the court must determine whether a party’s mental condition is actually “in controversy.” A plaintiff in a negligence action who asserts mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. At times, the pleadings alone are sufficient to meet satisfy “good cause.”
If the plaintiff will not agree to submit to an IME, having an affidavit in hand from the independent medical examiner outlining the necessity for the IME and the information sought to be discovered will aid in establishing the good cause for the examination. Of course, one must be careful to avoid broadcasting the intent and goal of the IME. Stay tuned for other issues which may arise in requesting an IME.