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§ 6-335. Physical and mental examination of persons.

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   (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 one or more physicians, or other persons licensed or certified under the laws to engage in a health profession, or to produce for examination the person in his or her 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.

   (b) Report of Examining Physician.

   (1) If requested by the party against whom an order is made under subdivision (a) of this rule or the person examined, the party causing the examination to be made shall deliver to him or her a copy of a detailed written report of the examining physician setting out his or her findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing 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, unless, in the case of a report of examination of a person not a party, the party shows that he or she is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report, the court may exclude his or her testimony if offered at the trial.

   (2) (Not used).

   (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 examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

COMMENTS TO RULE 35

 

   35(a) This rule follows the federal rule and expands former Neb. Rev. Stat. § 25‑1267.40 (Repealed 1982). A person under the control of a party is now included in this rule. The court may order more than one examination. The health professions that require a license or certificate are defined in Neb. Rev. Stat.  § 71-102.

 

   35(b) This section follows the federal rules and establishes a useful procedure for exchange of medical reports. Subdivision (b)(2) of the federal rule is not used because the Nebraska Evidence Rules contain a direct waiver of the privilege. See Neb. Rev. Stat. § 27‑504.

Rule 35(b) comment amended February 26, 1997; Rule 35(a) and 35(a) comment amended November 21, 2001. Renumbered and codified as § 6-335, effective July 18, 2008.

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This page was last modified on Wednesday, October 24, 2012