A Delaware Rule 35 examination: asking for the report waives your privilege

A defense medical examination in Delaware comes with a trade written into the rule, and it is easy to walk into.

You are entitled to the examiner's report. But asking for it costs you a privilege — not just as to that examiner, and not just in that case:

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 the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

Every other examiner, past or future, for the same condition. In this action or any other involving the same controversy.

What triggers the waiver

Del. Super. Ct. Civ. R. 35(b)(2) names two acts, and either is enough:

The scope is what makes this consequential. A treating physician you consulted years earlier for the same condition, and a physician you see next year, both fall inside it.

Note the wording of the first trigger: "requesting and obtaining". Both steps. And the second trigger needs no request at all — deposing the examiner does it on its own.

None of this is a reason never to ask for the report. It is a reason to decide deliberately, knowing what else opens up.

When an examination can be ordered at all

Rule 35(a):

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 or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's 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.

There is no examination by notice. A defendant cannot simply schedule one; it takes a motion, good cause, and an order.

The list of what the order shall specify is the practical lever. "Manner", "conditions" and "scope" are all in the rule, so limits on what the examination covers, how long it runs, and what may be done during it are proper subjects for the order rather than concessions to be asked for afterwards.

The rule also reaches a person "in the custody or under the legal control of a party" — a child, for instance — whom the party may be ordered to produce for examination.

The report you are entitled to

Rule 35(b)(1) sets the exchange up as a two-way obligation.

On request by the party against whom the order was made or the person examined, the party who obtained the examination must deliver "a copy of the detailed written report of the examiner 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."

That last item is worth asking about. The obligation is not limited to the report from this examination.

After delivery, the exchange reverses: the party who obtained the examination "shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition" — subject to an exception where the report concerns a non-party and the party shows it cannot obtain it.

Two enforcement provisions close the subdivision. The Court on motion may order delivery of a report "on such terms as are just". And "if an examiner fails or refuses to make a report the Court may exclude the examiner's testimony if offered at trial."

Examinations by agreement are covered too

Rule 35(b)(3):

This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other Rule.

This is the trap inside the trap. Agreeing to an examination rather than being ordered into one does not avoid the report-and-waiver regime — unless the agreement expressly says so.

So where an examination is being arranged by consent, the terms are worth setting out in writing: what the scope is, and whether Rule 35(b) applies at all.

The second sentence preserves other routes: nothing here forecloses discovery of an examiner's report or a deposition of the examiner "in accordance with the provisions of any other Rule". But note that the deposition route is itself one of the two waiver triggers in (b)(2).

No examination on the arbitration track

If the case is proceeding under Delaware's mandatory non-binding arbitration rule, this whole subject is suspended before the hearing. Rule 16.1(e)(2) provides that defendants "may not request a medical examination of the plaintiff prior to the arbitration hearing, but may have a medical records review performed."

That is one of the trade-offs of the shorter track, and it is worth weighing when the election is made. See Delaware mandatory non-binding arbitration, which also sets out the five-day duties to serve a HIPAA-compliant authorization and medical records.

Where this connects

For the discovery framework the examination sits inside, see Delaware discovery deadlines.

If the examiner is to be deposed, Delaware depositions covers the mechanics — including the bar on a deponent's attorney conferring during breaks shorter than five calendar days.

Where a party will not comply with an examination order, Rule 37(b)(2)(E) supplies specific consequences for failing to produce another person for examination, and contempt is expressly unavailable for an order to submit to a physical or mental examination. See the Delaware motion to compel.

How Delaware compares

A short checklist

1. Nothing happens without a motion and an order. Good cause and notice are required.
2. Negotiate the order, not the appointment. Time, place, manner, conditions, scope and the examiner are all things the order must specify.
3. Decide about the report deliberately. Requesting it — or deposing the examiner — triggers the waiver.
4. Understand how far the waiver reaches: every other examiner, past or future, same condition, this case or a related one.
5. Ask for the earlier reports too. The obligation covers all prior examinations of the condition.
6. Expect to reciprocate. After delivery, your own examination reports become requestable.
7. If you agree to an examination, say in the agreement whether Rule 35(b) applies. Otherwise it does.
8. On the arbitration track, no examination happens before the hearing — only a records review.

Where these rules live

• Del. Super. Ct. Civ. R. 35 — Physical and mental examinations of persons
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery
• Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions
• Del. Super. Ct. Civ. R. 16.1 — Mandatory non-binding arbitration

This page explains what the rules say. It isn't legal advice.