Firm Newsletter - July 2016

Photo by Martin Barraud/OJO Images / Getty Images

Photo by Martin Barraud/OJO Images / Getty Images

A Final Word From the Texas Supreme Court Regarding Court-Ordered Medical Exams

The Texas Supreme Court recently issued an opinion in In re H.E.B. Grocery Company., L.P. that definitively establishes a defendant’s procedural right to a medical examination when a plaintiff has been examined by a testifying expert.

The plaintiff in H.E.B. Grocery Company, L.P. alleged that he tripped, fell, and was injured while shopping at a store. He received medical treatment, including two surgeries, and had a recommendation for additional surgery. While suit was pending, the plaintiff was also allegedly injured while shopping at a Sam’s Club. He filed a separate suit against Sam’s Club. In HEB’s case, HEB retained an orthopedic surgeon who provided an expert report based only on a review of medical records. At his deposition, HEB’s expert admitted that a treating doctor had a better feel for the patient than a physician who just reviewed records. HEB’s moved for a medical exam by its experts, but the request was denied by the trial court. The Thirteenth Court of Appeals denied mandamus relief, noting that it had failed to provide a reporter’s records of pertinent hearings. With new appellate counsel and a more robust mandamus record, HEB took the issue to the Texas Supreme Court.

Whether to grant a medical exam is governed by Texas Rules of Civil Procedure 204.1. Under Rule 204.1, a trial court may grant a physical or mental examination of another party if the movant establishes that (1) good cause exists for the examination, and (2) the mental or physical condition of the party the movant seeks to examine ‘is in controversy. See Tex. R. Civ. P. 204.1.

The good-cause element requires a defend-ant to show (1) that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence, (2) establish a reasonable nexus be-tween the requested examination and the condition in controversy, and (3) demonstrate that the desired information cannot be obtained by less intrusive means.

Plaintiffs’ lawyers typically use the good-cause element and cases, emphasizing “less intrusive means” as bases for denying a re-quest for medical exam by defendants. The appellate courts in Texas were mixed in their response to mandamus petitions from the denial of requests for medical exams. Some appellate courts had held that when a plaintiff was examined by one of her experts, a defendant was entitled under Rule 204.1 and basic notions of fairness to a similar exam. Others would deny relief without providing an explanation.

The recent ruling from the Texas Supreme Court should bring some uniformity to motions for a medical exam. The Court held that as long as relevance is established the trial court will be seen as clearly abusing its discretion by not allowing a defendant’s ex-pert to examine the physical health of the plaintiff. In other words, when the condition in controversy is the physical health of the plaintiff and the plaintiff has been examined by an expert who will testify at trial, the trial court may not deny a motion to allow the defendant’s expert to exam the plaintiff.

Downloadable .PDF - July 2016