Rule 35.Physical and Mental Examination of Persons
Part V. Depositions and Discovery · Last verified September 4, 2026
Full Text of Rule 35
Plain-English Summary
Rule 35 is identical to its civil counterpart and the source says so before subsection (a). In the Probate and Family Court it is the route to an examination where a parent's or child's condition is genuinely at issue.
The order
Where 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 may order the party to submit to an examination by a physician, or to produce the person in their custody or legal control.
Four requirements sit on that. The order comes only on motion; only for good cause shown; only on notice to the person to be examined and to all parties; and it must specify the time, place, manner, conditions and scope of the examination and who is to conduct it. An order that leaves any of those open is not what the rule provides for.
The report, and the price of asking for it
Subsection (b)(1) gives the examined person or the party against whom the order was made a right, on request, to a detailed written report of the examining physician — findings, results of all tests, diagnoses and conclusions — together with like reports of all earlier examinations of the same condition. Once delivered, the party who caused the examination is entitled on request to a like report of any examination of the same condition, before or after, unless the party shows it cannot be obtained for a non-party. If a physician fails or refuses to make a report, the court may exclude that physician's testimony.
Subsection (b)(2) is the trap. By requesting and obtaining the report, or by deposing the examiner, the party examined waives any privilege regarding the testimony of every other person who has examined or may examine them about the same condition — in that action and in any other involving the same controversy. The waiver does not extend to objecting at trial to the report itself coming into evidence.
Subsection (b)(3) applies the whole of subsection (b) to examinations made by agreement of the parties unless the agreement expressly provides otherwise — so a stipulated examination carries the same waiver unless the parties say it does not.
Frequently Asked Questions
When can the court order a physical or mental 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 order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties.
What must the order say?
Rule 35(a) requires it to specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
What do I give up by asking for the examiner's report?
Rule 35(b)(2) provides that by requesting and obtaining the report, or by taking the examiner's deposition, the party examined waives any privilege regarding the testimony of every other person who has examined or may examine them about the same mental or physical condition — in that action and in any other involving the same controversy. The right to object at trial to the report coming into evidence is not waived.
Does the waiver apply to an examination the parties agreed to?
Rule 35(b)(3) applies subdivision (b) to examinations made by agreement of the parties unless the agreement expressly provides otherwise.
What if the physician will not write a report?
Rule 35(b)(1) allows the court on motion to order delivery of a report on such terms as are just, and provides that if a physician fails or refuses to make a report the court may exclude that physician's testimony if offered at trial.