In Georgia civil litigation, the procedure for compelling a plaintiff to submit to a physical or mental examination by a defense-selected examiner is governed by O.C.G.A. § 9-11-35, the state counterpart to Rule 35 of the Federal Rules of Civil Procedure. These examinations are commonly called “Rule 35 examinations” or “independent medical examinations,” and they are a recurring feature of truck accident litigation because such cases routinely involve significant claimed physical injuries.
The Statutory Standard
O.C.G.A. § 9-11-35(a) provides that when the mental or physical condition, including blood group, of a party is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician or to a mental examination by a physician or licensed psychologist. The order may also reach a person in the custody or under the legal control of a party, which most often arises in cases involving minor children or wards.
The statute imposes two threshold requirements that must be satisfied before an order may issue. First, the condition must be “in controversy,” meaning placed in dispute by the pleadings, the discovery record, or the parties’ filings. Second, the moving party must demonstrate “good cause” for the requested examination. The order must be made on motion, with notice to the person to be examined and to all parties, and must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons by whom it is to be made.
When the “In Controversy” Requirement Is Met
In a truck accident case, the plaintiff’s physical condition is typically placed in controversy by the complaint itself when the plaintiff seeks recovery for personal injuries. A claim for traumatic brain injury, post-traumatic stress disorder, or other psychological consequences likewise places mental condition in controversy. Georgia decisions have followed the analytical framework adopted by the United States Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964), under federal Rule 35, requiring an affirmative showing rather than treating the in-controversy element as automatically satisfied by the pleadings alone.
In practice, when a plaintiff in a truck accident case alleges ongoing physical pain, surgical interventions, future medical needs, lost earning capacity tied to physical limitations, or significant mental anguish supported by claims of diagnosed conditions, courts generally find the in-controversy element met.
Good Cause
Good cause is a separate showing. Courts look for reasons that an examination is needed beyond the medical records and treating-provider testimony already available. Common bases for good cause include disputes between the plaintiff’s experts and the defense about the diagnosis, prognosis, or causation; the absence of recent examinations close in time to trial; questions about whether a claimed condition exists; or specific issues, such as malingering, that can only be addressed through direct examination.
A bare desire to obtain a defense-favorable report is not good cause. The movant must articulate, with reference to the case record, why an examination is reasonably necessary.
Scope, Manner, and Conditions of the Examination
Section 9-11-35(a) requires the order to specify time, place, manner, conditions, scope, and examiner. Each of these elements can be the subject of negotiation or motion practice. Common disputes include whether the examination may include diagnostic testing (such as imaging or neuropsychological batteries), the duration of the examination, the location, whether the plaintiff may have a representative or audio recording present, whether the plaintiff may bring a translator, and what materials the examiner is permitted to review in advance.
Georgia courts have addressed whether a plaintiff has a right to record the examination or to have counsel present. Decisions on these questions are fact-specific, and trial courts retain significant discretion to set conditions appropriate to the case.
Selection of the Examiner
The defense generally selects the proposed examiner, subject to the plaintiff’s right to object on grounds that the examiner is not qualified for the issues at hand or has a disqualifying conflict. Courts have declined to allow plaintiffs to dictate the identity of the examiner outright, although they will entertain reasoned objections to particular examiners.
The statute requires the examiner to be a “physician” for physical examinations or a “physician or licensed psychologist” for mental examinations. Examinations by chiropractors, physical therapists, or other practitioners outside these categories are generally not authorized under Section 9-11-35, although stipulated examinations can broaden this universe.
Reports and Reciprocal Discovery
Section 9-11-35(b) governs reports. The party causing the examination must, on request, deliver to the party against whom the order was made a copy of a detailed written report setting out the examiner’s findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. After delivery, the party causing the examination is entitled, on request, to receive a like report of any examination, previously or thereafter made, of the same condition.
This exchange requirement creates an incentive for both sides to retain examiners willing to produce detailed written reports. By requesting the examiner’s report under Section 9-11-35(b), the plaintiff waives any privilege regarding the testimony of any other person who has examined or may thereafter examine the plaintiff in respect to the same condition.
Voluntary Examinations and Stipulations
Many examinations occur by agreement rather than by court order. The parties may stipulate to the examination, the examiner, the scope, and the conditions, and these stipulations are common in trucking cases involving disputed injury claims. Section 9-11-35(b)(3) provides that paragraphs (1) through (4) of subsection (b), including the report exchange provisions, apply to agreed examinations unless the agreement expressly provides otherwise.
Refusal to Submit
If a party refuses to obey an order to submit to an examination, Section 9-11-37(b)(2)(A) through (E) authorizes a range of sanctions, although Section 9-11-37(b)(2)(D), which permits contempt, is expressly excluded from the available sanctions for failure to submit to an examination. The remaining sanctions, including establishing facts, prohibiting evidence, striking pleadings, dismissing the action, or rendering default judgment, remain available. Courts approach these sanctions cautiously and typically issue an order, hear objections, and consider lesser remedies before imposing severe consequences.
Examinations Beyond the Plaintiff
Section 9-11-35 reaches a “party” or a person in a party’s custody or legal control. Examinations of nonparty witnesses, treating providers, or family members are not authorized under the statute. Subpoena practice under O.C.G.A. § 24-13-23 may permit limited deposition discovery from third-party medical providers, but does not authorize a defense-conducted physical examination.
Mental Examinations
Mental examinations present additional considerations because the examination process itself can be intrusive. Georgia courts may impose conditions on neuropsychological testing, the use of specific instruments, and the disclosure of raw data. Disputes over raw data and test protocols sometimes arise because of professional confidentiality concerns of psychologists under their ethical guidelines, which can conflict with the discoverability obligations of Section 9-11-35(b).
Truck Accident Context
In trucking litigation, defense examinations often focus on disputed injuries, such as soft-tissue spinal injuries, mild traumatic brain injury, chronic pain syndromes, and surgical outcomes. The volume of medical records, the involvement of multiple treating providers, and the use of life care planners on both sides give rise to active examination practice. The statute’s emphasis on a particularized showing, an order tailored to the case, and reciprocal exchange of reports gives Georgia trial courts a framework within which to manage these examinations through trial.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.