Oklahoma § 12-3235 - Physical and mental examination of persons

§ 12-3235. Physical and mental examination of persons

A. SCOPE WHEN ELEMENT OF CLAIM OR DEFENSE. When the physical,

including the blood group, or mental condition of a party or of a

person in custody or under the legal control of a party, is in

controversy in any proceeding in which the person relies upon that

condition as an element of his claim or defense, an adverse party

may take a physical or mental examination of such person.

B. PROCEDURE WHEN ELEMENT OF CLAIM OR DEFENSE. The party

desiring to take the physical or mental examination of another party

or of a person in custody or control of another party within the

scope of subsection A of this section shall serve his request upon

the person to be examined and all other parties. The request shall

specify the time, place, manner, conditions and scope of the

examination and the person or persons by whom it is to be made.

No request shall be served until thirty (30) days after service

of summons and petition upon the defendant. The request shall set a

time for the examination not less than five (5) days after service

of the notice.

If the party or person in custody or control of the party who is

to be examined objects to the physical or mental examination then he

shall file a motion objecting to the examination and setting out the

reasons why his mental or physical condition is not in controversy

or such person may apply for a protective order under the provisions

of subsection C of Section 3226 of this title. The burden of proof

is upon the person objecting to the examination or requesting a

protective order. The court may set the conditions for examination

or refuse to permit such examination if the mental or physical

condition is not in controversy. If the party or the person in

custody or control of the party refuses to obey the court order to

submit to a physical or mental examination the court may impose

those sanctions provided for in paragraph 4 of subsection A and

paragraph 2 of subsection B of Section 3237 of this title.

Oklahoma Statutes - Title 12. Civil Procedure

If the motion is granted to prohibit the examination, the court

may impose those sanctions provided for in paragraph 4 of subsection

A of Section 3237 of this title upon the party requesting the

examination.

C. ORDER FOR EXAMINATION. When the physical, including the

blood group, or mental condition of a party, or a person in the

custody or under the legal control of a party, is in controversy but

does not meet the conditions set forth in subsection A of this

section, the court in which the action is pending may order the

party to submit to a physical or mental examination by a suitably

licensed or certified examiner or to produce for such examination

the agent, employee or person in his 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. The order

shall specify the time, place, manner, conditions and scope of the

examination and the person or persons by whom it is to be made.

D. REPRESENTATIVE MAY BE PRESENT. A representative of the

person to be examined may be present at the examination.

E. REPORT OF EXAMINER.

1. If requested by the party or the person examined under this

section, the party causing the examination to be made shall deliver

to him a copy of a detailed written report of the examiner setting

out his findings, including results of all tests made, diagnoses and

conclusions, together with the 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 or person 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 is unable to obtain it.

The court on motion may enter an order against a party requiring

delivery of a report on such terms as are just. If an examiner

fails or refuses to make a report the court may exclude his

testimony if offered at the trial.

2. If the physician or psychotherapist-patient privilege has

not already been waived as provided in the Oklahoma Evidence Code

requesting and obtaining a report of the examination made 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

physical or mental condition.

3. This subsection applies to examinations made by agreement of

the parties, unless the agreement expressly provides otherwise.

This subsection does not preclude discovery of a report of an

examiner or the taking of a deposition of the examiner in accordance

Oklahoma Statutes - Title 12. Civil Procedure

with the provisions of any other section of the Oklahoma Discovery

Code.

Added by Laws 1982, c. 198, § 12. Amended by Laws 1989, c. 129, §

11, eff. Nov. 1, 1989. Renumbered from § 3212 of this title by Laws

1989, c. 129, § 14, eff. Nov. 1, 1989. Amended by Laws 1993, c.

351, § 5, eff. Sept. 1, 1993.