Being forced to submit to a “defense medical examination” (also referred to as a “compulsory” or “adverse” medical examination) is assured for most plaintiffs in a personal injury lawsuit.  Defendants often believe they have an absolute right to require the plaintiff to undergo an evaluation by their own medical expert any time the plaintiff makes a claim for damages associated with a personal injury.  Unfortunately, some judges agree.

However, there is no unqualified “right” to a defense medical examination.  Instead, pursuant to Wis. Stat. § 804.10(1), a court “may” order the plaintiff to submit to an examination “[w]hen the mental or physical condition…of a party is in issue.”[1]  The statute goes on to state that “[t]he order may be made on motion for cause shown.”[2]  Thus, the right to obtain a defense medical examination is limited to when the plaintiff’s physical or mental condition is “in issue” and the defendant has made “a motion for cause shown.”  Also, even if the defendant has shown the medical condition of the plaintiff is in issue and there is cause for an examination, the trial court “may” order the examination, but it has discretion not to order it.

The statutory requirement of a motion, a showing of cause and a court order is significant.  Most rules of discovery do not require the defendant to show cause and to seek an order to obtain the information.  For example, the defendant does not have to show cause to obtain answers to interrogatories or to question the plaintiff at a deposition.  The requirement in Wis. Stat. § 804.10(1) to show cause demonstrates the recognition by the Wisconsin legislature that forcing a party to submit to a medical examination is not a decision to be made lightly.

Plaintiffs typically do not require the defendant to file a motion and show cause for a defense medical examination.  In a common personal injury lawsuit where the plaintiff’s current physical condition is in issue (such as where medical treatment is ongoing or the plaintiff claims a permanent injury) and the defendant has requested one defense medical examination, there is no valid reason to go through the formality of a motion.  It is obvious the defendant has cause for such an examination in that situation and requiring a motion and order by the court accomplishes little. 

However, cause for an examination is not so obvious in every case.  For example, assume the plaintiff suffered temporary injuries only and she has fully recovered by the time of the requested examination.  When no permanent or ongoing injury is claimed, the plaintiff’s physical condition is not “in issue.”  While the plaintiff’s past condition may be “in issue,” the current condition is not.  Thus, the defendant does not have the right to require the plaintiff to submit to a defense medical examination.

Additionally, in such a situation, the second prong of the statute requiring the defendant to show “cause” for an examination likely will not be met.  The requirement of showing cause is in addition to the requirement that the plaintiff’s physical condition be in issue.[3]  “Thus, for example, an examination might not be appropriate if the opposing party could obtain the desired information by other means.”[4]  The trial court has discretion in determining whether or not an examination is necessary, but the discretion must be rationally based on the record.[5] 

When a plaintiff’s claim is limited to past injuries and past pain and suffering because she has made a full recovery, there is no “cause” for an examination.  Nothing will be discovered in a medical examination other than a finding that the plaintiff currently has no limitations and feels no ill effects, something that is not in dispute.  Also, it clearly presents a factual scenario where the information can be obtained by the defendant through other means.  The defendant has the right to ask any questions related to the plaintiff’s medical background through a deposition or interrogatories.  Additionally, the position advocated here is not that the defendant has no right to retain its own medical expert or to request copies of medical records.  The defense expert can be retained and has the ability to review the plaintiff’s deposition transcript, interrogatory answers and even medical records.  Such discovery methods are examples of obtaining the information through “other means” as discussed in Ranft.

The above discussion assumes the injured plaintiff filed a lawsuit.  On a related note, when the parties instead submit the claim to arbitration, the defendant might also have no right to require a defense medical examination of the plaintiff.  This might be true even if the plaintiff’s current physical condition is in issue.

In a recent decision, the Wisconsin Supreme Court held that “[a]rbitrators have no inherent authority to dictate the scope of discovery, and absent an express agreement, the parties are limited to the procedure for depositions, as described in Wis. Stat. § 788.07.”[6]  In that case, Borst was injured in an automobile accident with an uninsured motorist and sought reimbursement for his damages under his uninsured coverage with Allstate.[7]  Allstate served Borst with a set of written interrogatories, a request for production of documents and medical authorizations.[8]  The arbitration panel ordered Borst to supply medical authorizations and cooperate in other appropriate discovery.[9]

The order from the arbitration panel was not based on any authority granted to it by the policy of insurance, which was silent regarding the terms of discovery.[10]  The Court held that arbitrators have no authority to determine what discovery is necessary and reasonable because there is no statutory authority providing for discovery in an arbitration proceeding other than for depositions as set forth in Wis. Stat. § 788.07.[11]  That chapter does not authorize the use of defense medical examinations.

Thus, the holding in Borst that discovery requests other than depositions are invalid, such as requests for production, interrogatories and medical authorizations, would apply equally to defense medical examinations.  This assumes, however, that the injured plaintiff did not agree by the terms of the insurance policy to submit to such examinations.  Although many insurance policies might have such a provision, it should not be assumed that an automatic right to a medical examination exists.

In summary, a plaintiff is not compelled to submit to a medical examination absent a showing that the plaintiff’s physical condition is at issue and that there is cause for an examination.  In some limited circumstances, such as when the plaintiff has completely recovered from his injuries, there may not be cause for an examination.  This is especially true when any information that could be obtained from a medical examination, including a medical history, can be received from another source, such as a deposition, a review of medical records or written interrogatories.

[2] Id. 

[3] See Ranft v. Lyons, 163 Wis.2d 282, 293, 471 N.W.2d 254, 258 (Ct. App. 1991).

[4] Id. at 293-94, 471 N.W.2d at 258.

[5] See id. at 294, 471 N.W.2d at 258.

[6] Borst v. Allstate Ins. Co., 2006 WI 70, ¶3. 

[7] See id. at ¶5. 

[8] See id. at ¶9. 

[9] See id. at ¶10.

[10] See id. at ¶ 53. 

[11] See id. at ¶57.