5.7​Medical Examinations

A.​Generally

“When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control 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 or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control.” MCR 2.311(A). Some statutes also require an examination under certain circumstances. See e.g., MCL 500.3151, which requires a person to submit to mental or physical examination at the request of an insurer when the person’s mental or physical condition is material to a claim for past or future personal protection insurance benefits. In the context of no-fault cases, it has been determined that the No-Fault Act, not MCR 2.311(A), governs any conditions placed on independent medical examinations. See Muci v State Farm Mut Auto Ins Co, 478 Mich 178 (2007). The rest of this section discusses medical examinations in the context of the general rules governing medical examinations (MCR 2.311 and MCL 600.1445). Discussion of medical examinations in particular types of cases governed by particular acts is beyond the scope of this section.

“The order may be entered only on motion for good cause with notice to the person to be examined and to all parties.” MCR 2.311(A). See also MCL 600.1445(1). “In the context of our court rules, ‘[g]ood cause simply means a satisfactory, sound or valid reason[.]’ A trial court has broad discretion to determine what constitutes ‘good cause.’” Thomas M Cooley Law Sch v Doe, 300 Mich App 245, 264 (2013) (alterations in original). “‘[W]hat may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant.’” Burris v KAM Transp, Inc, 301 Mich App 482, 489 (2013), quoting Schlagenhauf v Holder, 379 US 104, 118-119 (1964) (alteration added) (interpreting FR Civ P 35, the federal counterpart to MCR 2.311). In the context of determining whether good cause exists to grant a request for additional independent medical examinations, the trial court should consider the number of previous examinations, whether a subsequent examination is duplicative and/or necessary, as well as the passage of time since the previous examination(s). See Burris, 301 Mich App at 492-493.

“The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Upon request of a party, the order may also provide that (1) the attorney for the person to be examined may be present at the examination, or (2) a mental examination be recorded by video or audio.” MCR 2.311(A). “If the court orders that a mental examination be recorded, the recording must (1) be unobtrusive, (2) capture the examinee’s and the examiner’s conduct throughout the examination, and (3) be filed under seal.” MCR 2.311(B).

B.​Report of Physician, Physician’s Assistant, or Certified Nurse Practitioner

A copy of the report and findings by the examining licensed physician, licensed physician’s assistant, or certified nurse practitioner must be provided to the person examined or his or her attorney. MCL 600.1445(3). See also MCR 2.311(C)(1), which requires the party requesting the examination to deliver the reports and findings under certain circumstances. The party requesting the examination may request a copy of a similar report from any previous or subsequent examinations made regarding the same condition. MCR 2.311(C)(2).

If a physician fails to comply with MCR 2.311, the court may order the physician to appear for a discovery deposition. MCR 2.311(C)(3).

C.​Privilege

By requesting and obtaining a report of an examination ordered pursuant to MCR 2.311, or by deposing the examiner, “the person examined waives any privilege he or she may have in that action, or another action involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the person as to the same mental or physical condition.” MCR 2.311(C)(4).²¹

D.​Standard of Review

A court’s decision whether to grant an order requiring the mental or physical examination of a party or its agent is reviewed for an abuse of discretion. Burris v KAM Transp, Inc, 301 Mich App 482, 487 (2013).