Header Ads

Civil Procedure: Rule 28 - Physical and Mental Examination of Persons

RULE 28
Physical and Mental Examination of Persons

Section 1. When examination may be ordered. — In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. 

Section 2. Order for examination. — The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other 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. 

Section 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. 

Section 4. Waiver of privilege. — 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 he 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 him in respect of the same mental or physical examination. 


* * * * * * * * * * *

● Rule 28 contemplates a situation where the mental condition or physical condition of a party is an issue. And the determination of that issue is required in order that a proper judgment can be rendered.

● Examples of this action would be:
  1. An action for annulment of a contract where the ground relied upon is insanity or dementia;
  2. A petition for guardianship of a person alleged to be insane;
  3. An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.

Requisites:
  1. The physical or mental condition of a party (NOT A WITNESS) is in controversy;
  2.  Motion must be filed showing good cause for the examination;
  3.  Notice given to the party to be examined and to all other parties;
  4.  Notice must specify the time, place, manner, conditions and scope of examination; and
  5.  Notice must also specify person/s who will make the examination.

Procedure
  1. If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions.

  2. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition.

  3. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just.

  4. If it is the physician who fails or refuses to make such a report the court may exclude his testimony if offered at the trial. (Sec. 3, Rule 28, Rules of Court)

Physician-Patient Privilege
  1. Inapplicable because the results of the examination are intended to be made public.
  2. Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physical or mental condition

Illustration:

W sued the husband H for declaration of nullity of marriage on the ground of fraud. Why? Because whereas before marriage, H represented himself to be more than able to perform what is expected of a husband to the effect and dismay of W. The representation turned otherwise. Why? Because what was represented to be a “deadly weapon” turned out to be a “dead weapon”. So the answer of H is “Anong sinasabi ng asawa ko sa complaint ay hindi naman totoo.”

So W moved, by filing a motion that H be directed to submit himself to an examination of his physical condition before Dr. X. Of course this motion must be with due notice to H. The examination was conducted out of curiosity, H obtained the copy of the report of Dr. X. Upon reading it, he has almost fainted. Why? Because the result confirmed the allegation of the wife. But H is one who is easily daunted by this adverse report, he said, “Tarantadong doktor ito. Saan kaya nag-aral ito hindi marunong. Kaya ko! Kaya ni Mister!” So he wanted to disprove. So what did he do? He engaged Dr. Y to examine him also on the matter in connection with which Dr. X examine him. The examination was finished. He got also a copy of the report, you could just imagine what happen now! Whereas when he got a copy of the report of Dr. X, he nearly fainted, now that he received the copy of the report of Dr. Y, he actually fainted! Why? Because the result of Dr. Y’s examination confirmed the findings of Dr. X.

Trial…………………..

W now called on Dr. Y. So in announcing the purpose for which she offered the testimony of Dr. Y, W said “W your honor, offers the testimony of Dr. Y to prove that H cannot do it.” H said “I object to Dr. Y’s testifying, I have not given him my consent to testify, so under the rules on evidence, he cannot.” The court overruled the objection and allowed Dr. Y to testify on his findings.

Q.  Is the ruling of the court correct?
A.  Yes. Because by obtaining the copy of the report of Dr. X, H waived the benefit that he may have over the testimony of Dr. Y.

So this is therefore a rule (Rule 28), which should be taken into account in relation to the rule on the confidentiality of the communication between a patient and a doctor. You remember the rule that a doctor of medicine, an obstetrician, a surgeon cannot without the consent of his patient testify on the following:

1. The advice that the doctor gave to the patient;
2. The treatment that the doctor administer to the patient;
3. The information that the doctor obtained in the course of attending professionally to the patient when information was necessary to enable the doctor to properly attend to the patient and which information if revealed, would embarrass the patient.

So this rule does not apply when Rule 28 is involved. Rule 28 therefore, qualifies the provision. (Source: Laggui Remedial Law Reviewer)

Powered by Blogger.