Rule 35.Physical and mental examination of persons

Reporter’s Notes—1995 Amendment: Rule 35 is amended for conformity with a 1991 amendment of Federal Rule 35 extending the rule to include physical or mental examinations by any person who is “suitably licensed or certified” to conduct the examination sought. The Advisory Committee’s Note to the 1991 federal amendment points out that the requirement of suitable license or certification is intended to authorize the court “to assess the credentials of the examiner to assure that no person is subjected to a court-ordered examination by an examiner whose testimony would be of such limited value that it would be unjust to require the person to undergo the invasion of privacy associated with the examination.” The federal Advisory Committee further notes that the suitability requirement applies even to an examination by a physician and that the rule does not “require that the license or certificate be conferred by the jurisdiction in which the examination is conducted.”

Reporter’s Notes—1975 Amendment: Rule 35(b) is amended by the addition of a new paragraph (2) adopting verbatim Federal Rule 35(b)(2). See also Maine Rule 35(b)(2). The change will be incorporated by reference in D.C.C.R. 35. No provision for waiver of the physician-patient privilege was deemed necessary when the rules were originally promulgated because Vermont law did not recognize the privilege. See Reporter’s Notes to Rule 35 as originally promulgated. This situation was changed by Act No. 190 of 1973, effective July 1, 1974, which added 12 V.S.A. § 1612(a), providing that in the absence of waiver by the patient or by law, “a person authorized to practice medicine or dentistry, or a registered professional or licensed practical nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” The amended rule provides that if a party who has been examined by an opponent obtains a copy of the report or takes the deposition of the examiner, the party waives the physician-patient privilege as to the condition in question in its entirety—both in future actions and with regard to other examinations. Note that the provision applies only to a party. There is no waiver if the report of an examination of a nonparty is obtained by either the person examined or the opposing party. See Wright and Miller, Federal Practice and Procedure § 2237, n. 16 (1970). Note also that the amended rule applies to “mental,” as well as physical, condition. There is presently no psychologist- or psychotherapist-patient privilege in Vermont law, and thus nothing to waive as to examinations by such practitioners. The evidence of “a person authorized to practice medicine” as a mental condition, however, is privileged under the statute and subject to the waiver. The amendment is not intended to foreclose further judicial development of the doctrine of waiver under the new privilege statute. In some jurisdictions, it is held that testimony as to the condition in issue by the patient, calling one of several examining doctors, or commencement of an action putting the condition in issue constitutes a waiver. See McCormick on Evidence § 103 (Cleary et al., eds., 1972). Rule 35(b)(2) would be necessary, however, even if the last of these doctrines were adopted, since the doctrine would not apply to a defendant. See Advisory Committee’s Note to 1969 Amendment of Maine Rule 35, 1 Field, McKusick and Wroth, Maine Civil Practice 525- 526 (2d ed. 1970).

Reporter’s Notes: This rule carries forward the provisions of 12 V.S.A. §§ 1263- 1264 (now superseded), with changes taken from the 1970 federal amendments. The Vermont statute was virtually identical to former Federal Rule 35, with the differences that the statute expressly required that the party to be examined have refused to submit voluntarily and expressly provided that the examination was to be at the expense of the applicant. Since these provisions both reflect the practice under the federal rule as it stands, they have been omitted in the interests of uniformity but will still be Vermont practice. See 8 Wright & Miller, Federal Practice and Procedure § 2234 (1970). The former statute has been followed in another respect, however. Federal Rule 35(b)(2), providing that by requesting a report of his examination the examined party waives any privilege regarding other examinations, was omitted from the statute and has been omitted from the rule, because Vermont does not recognize the physician-patient privilege. Cf. R.I. Rule 35; Advisory Committee’s Note to 1969 Amendment of Maine Rule 35, 1 Field, McKusick & Wroth, Maine Civil Practice 525-526 (1970). A major change based on the 1970 federal amendments is the extension of Rule 35(a) to permit examination of “a person in the custody or under the legal control of a party” when such person’s condition is in controversy. This change makes clear that a parent or guardian suing to recover for injuries to a minor may be required to produce the minor for examination. In line with what was already the federal practice, the rule now also expressly permits determination of blood group. See Beach v. Beach, 114 F.2d 479 (D.C. Cir. 1940). Rule 35(b)(1) has been changed to require delivery to the examined party not only of a report of an examination held under the rule but of all earlier examinations to which he may have access. It is also made clear that the report includes such items as test results. Rule 35(b)(2) is taken from Federal Rule 35(b)(3), which was added by the 1970 amendments. It makes clear that Rule 35(b) applies to examinations made by agreement and that other discovery devices may be used to obtain medical reports or testimony.