2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 5 - Depositions and Discovery
§ 9-11-35. Physical and Mental Examination of Persons

1. Order for examination. 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 examination by a physician or to submit to a mental examination by a physician or a licensed psychologist or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
2. Report of examining physician or psychologist.
   1. If requested by the party against whom an order is made under subsection (a) of this Code section or by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician or psychologist setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition.
   2. Any party shall be entitled, upon request, to receive from the party whose physical or mental condition is in issue, or who is in control of, or has legal custody of, a person whose physical or mental condition is in issue, a report of any and every examination, previously or thereafter made, of the condition in issue, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it.
   3. The court, on motion, may make an order against a party requiring delivery of a report under paragraph (1) or (2) of this subsection on such terms as are just; and, if a physician or psychologist fails or refuses to make a report, the court may exclude his testimony if offered at the trial.
   4. By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action, or any other action involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect to the same mental or physical condition.
   5. Paragraphs (1) through (4) of this subsection apply to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. Paragraphs (1) through (4) of this subsection do not preclude discovery of a report of an examining physician or psychologist or the taking of a deposition of the physician or psychologist in accordance with any other Code section of this chapter.

(Ga. L. 1966, p. 609, § 35; Ga. L. 1972, p. 510, § 8; Ga. L. 2001, p. 808, § 1.)

- Disclosure of medical records, § 24-12-10 et seq.

Appointment of physicians and surgeons for examination of employees filing claim for workers' compensation, § 34-9-101.

Examination of employee upon request by employer, and as to effect of refusal of examination, § 34-9-202.

- For provisions of Federal Rules of Civil Procedure, Rule 35, see 28 U.S.C.

- For article, "Ex Parte Communications with an Opponent's Employees and Expert Witnesses: Which Potential Witnesses Can a Lawyer Talk to Without Breaking the Rules?," see 27 Ga. St. B.J. 6 (1990). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971). For comment on Rider v. Rider, 110 Ga. App. 382, 138 S.E.2d 621 (1964), see 16 Mercer L. Rev. 461 (1965).

ANALYSIS

• General Consideration
• Good Cause

General Consideration

Editor's notes.

- Georgia Laws 1972, p. 510, made substantial revisions to certain Code sections of this chapter dealing with discovery. Prior to the 1972 amendment, this Code section was substantially the same as former Code 1933, § 38-2110. Hence, decisions based on this Code section prior to its 1972 amendment should be consulted with care.

In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 21, T. 38 are included in the annotations for this Code section.

- 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 examination to determine the existence and the extent of such asserted injury. Crider v. Sneider, 243 Ga. 642, 256 S.E.2d 335 (1979).

- Defendant who asserts the defendant's mental or physical condition as a defense to a claim, such as, for example, asserting insanity as a defense to a divorce action, places the defendant's mental or physical condition in controversy, and provides the plaintiff with good cause for an examination. Crider v. Sneider, 243 Ga. 642, 256 S.E.2d 335 (1979).

- Granting of order for physical examination is permissive, not mandatory, and may be entered only for "good cause shown." Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125 (1965); Metropolitan Life Ins. Co. v. Lehmann, 125 Ga. App. 539, 188 S.E.2d 393 (1972) (decided under former Code 1933, Ch. 21, T. 38).

- Presence of discretionary power in trial court precludes the assumption that a party has an absolute right to secure an order requiring the opposite party to undergo a physical examination. Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125 (1965) (decided under former Code 1933, Ch. 21, T. 38).

- Grant or denial of a motion for mental and physical examination rests in the sound discretion of the trial court. Crider v. Sneider, 243 Ga. 642, 256 S.E.2d 335 (1979).

Trial court did not abuse the court's broad discretion in denying the defendant's motion for an order permitting one of the defendant's expert witnesses to examine the plaintiff since the order denying the defendant's motion showed that the order was based in part on a finding that the information sought under the motion for examination could be obtained from other available sources. Prevost v. Taylor, 196 Ga. App. 368, 396 S.E.2d 17 (1990), overruled on other grounds, Johnson v. Riverdale Anesthesia Assocs., P.C., 275 Ga. 240, 563 S.E.2d 431 (2002).

Relevant factors in determining whether to grant a motion for examination are the ability of the movant to obtain the desired information by other means, the timeliness of the motion and the events leading up to the motion. Metropolitan Life Ins. Co. v. Lehmann, 125 Ga. App. 539, 188 S.E.2d 393 (1972).

- Use of physical examination procedure is discretionary with counsel, and its utilization is in no sense mandatory; hence, counsel's failure to invoke a physical examination subjects the counsel's cause to no unfavorable inferences. Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125 (1965), (decided under former Code 1933, Ch. 21, T. 38).

- When the defendant denies paternity in a suit by minors for upkeep, maintenance, and education and moves that court order minor plaintiffs and their mother to submit to a blood test to determine paternity, the trial judge is authorized in the judge's discretion to order a physical examination of the parties. Rider v. Rider, 110 Ga. App. 382, 138 S.E.2d 621 (1964). For comment, see 16 Mercer L. Rev. 461 (1965).

- Because the plaintiff claimed mental injury as a result of an assault in the defendant hotel's parking lot, the defendant was entitled to conduct an independent mental examination of the plaintiff, and deposing the plaintiff's treating psychiatrist could not be deemed the equivalent of an independent evaluation. Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1997).

- Since a psychologist is not a physician, the trial court had no authority to order the plaintiff to submit to an examination by a psychologist. Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1997).

Patient-psychiatrist privilege does not apply to a psychiatric examination under O.C.G.A. § 9-11-35. Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1997).

Cited in Hurd v. State, 125 Ga. App. 353, 187 S.E.2d 545 (1972); Doe v. Roe, 235 Ga. 318, 219 S.E.2d 700 (1975); Johnson v. Martin, 137 Ga. App. 312, 223 S.E.2d 465 (1976); Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985); Morris v. Turnkey Med. Eng'g, Inc., 317 Ga. App. 295, 729 S.E.2d 665 (2012).

For meaning of "good cause," see Crider v. Sneider, 243 Ga. 642, 256 S.E.2d 335 (1979).

- Good cause requirement indicates there must be a greater showing of need than under the other discovery rules. Sorrells v. Cole, 111 Ga. App. 136, 141 S.E.2d 193 (1965) (decided under former Code 1933, Ch. 21, T. 38).

- What is sufficient to fulfill "good cause" criterion rests in the broad discretion of the trial judge. Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125 (1965)(decided under former Code 1933, Ch. 21, T. 38); Metropolitan Life Ins. Co. v. Lehmann, 125 Ga. App. 539, 188 S.E.2d 393 (1972); Sheffield v. Lockhart, 151 Ga. App. 551, 260 S.E.2d 416 (1979).

- This section places the burden upon the movant to establish "good cause." Sheffield v. Lockhart, 151 Ga. App. 551, 260 S.E.2d 416 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Commission without authority to compel medical examination.

- Neither the Professional Practices Commission nor a local board of education is a "court of record" for purposes of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) and, therefore, such commission is without authority to compel a party to a proceeding before it to submit to a medical examination pursuant to this section. 1977 Op. Att'y Gen. No. 77-48.

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Depositions and Discovery, § 168 et seq.

- 27 C.J.S., Discovery, §§ 160, 161. 35B C.J.S., Federal Civil Procedure, §§ 727, 739 et seq., 1063.

- Power to require plaintiff to submit to physical examination, 51 A.L.R. 183; 108 A.L.R. 142.

Nature, extent, and conduct of physical examination of party to action or proceeding to recover for personal injury or disability, 135 A.L.R. 883.

Federal Rule of Civil Procedure 35 (b) (1) and (2) and similar state statutes and rules pertaining to reports of physician's examination, 36 A.L.R.2d 946.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

Power to require physical examination of injured person in action by his parent or spouse to recover for his injury, 62 A.L.R.2d 1291.

Right to copy of physician's report of pretrial examination where there is no specific statute or rule providing therefor, 70 A.L.R.2d 384.

Court's power to order physical examination of personal injury plaintiff as affected by distance or location of place of examination, 71 A.L.R.2d 973.

Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection, 73 A.L.R.2d 12.

Availability of writ of prohibition to prevent illegal or unauthorized taking of depositions, 73 A.L.R.2d 1169.

Physical examination of allegedly negligent person with respect to defect claimed to have caused or contributed to accident, 89 A.L.R.2d 1001.

Production and inspection of premises, persons, or things in proceeding to perpetuate testimony, 98 A.L.R.2d 909.

Right of party to have his attorney or physician, or a court reporter, present during his physical or mental examination by a court-appointed expert, 7 A.L.R.3d 881.

Timeliness of application for compulsory physical examination of injured party in personal injury action, 9 A.L.R.3d 1146.

Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination, 18 A.L.R.3d 1433.

Right of defendant in personal injury action to designate physician to conduct medical examination of plaintiff, 33 A.L.R.3d 1012.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.

Discovery: right to ex parte interview with injured party's treating physician, 50 A.L.R.4th 714.

Right of party to have attorney or physician present during physical or mental examination at instance of opposing party, 84 A.L.R.4th 558.

Propriety of state court's grant or denial of application for pre-action production or inspection of documents, persons, or other evidence, 12 A.L.R.5th 577.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

Right to perpetuation of testimony under Rule 27 of Federal Rules of Civil Procedure, 60 A.L.R. Fed. 924.