Defense Medical Exams in California.

Overview

The defense will send you to their own doctor. This guide explains your rights, how to prepare, and how your attorney challenges the defense doctor's conclusions.

CCP 2032: Statutory Framework

Physical and mental examinations are governed by CCP sections 2032.010 through 2032.650. Unlike other discovery tools, physical examinations require either a stipulation or a court order based on a showing of good cause.

Key Statutory Provisions

Provision	CCP Section	Summary
Right to examine	2032.020	Physical/mental exam of party whose condition is in controversy
Good cause requirement	2032.310	Moving party must show good cause for the examination
Court order required	2032.310	Must obtain court order absent stipulation
Scope of examination	2032.320	Court specifies conditions, scope, manner, place, and time
Exchange of reports	2032.610-640	Mandatory exchange of medical reports
One examination per case	2032.220	One exam without leave; additional exams require good cause
Examiner selection	2032.310	Court specifies the examiner; parties may object

When the Defense is Entitled to a DME

The defendant may obtain a DME when:

1. The plaintiff has placed their physical or mental condition in controversy by claiming physical or emotional injuries
2. The defendant demonstrates good cause for the specific examination requested
3. The examination is relevant to a condition actually at issue in the case

Plaintiff's Rights During the DME

California law provides important protections for plaintiffs undergoing defense medical examinations. Knowing and asserting these rights is critical to protecting your client.

Right to Record the Examination

Under CCP 2032.530, the plaintiff has the right to have the examination audio recorded at the plaintiff's expense. Key rules:

• The plaintiff must give advance notice of intent to record
• The recording must be by audio technology -- the statute specifies audio, not video
• The examiner may also record the examination
• The recording may be used at trial to impeach the examiner's testimony

Right to Have an Observer Present

While the statute does not expressly guarantee the right to an observer, many courts permit a third-party observer (such as a paralegal or nurse) to be present during the examination. Best practices:

• Request an observer in your stipulation or opposition to the DME motion
• If the examiner objects, seek a court order
• The observer should be unobtrusive and should not interfere with the examination
• The observer should take detailed notes of the examination's duration, tests performed, and examiner statements

Scope Limitations

The examination must be limited to the conditions in controversy. The plaintiff may object to:

• Examination of body parts not at issue in the case
• Invasive procedures not justified by the injuries claimed
• Psychological testing when only physical injuries are claimed (and vice versa)
• Multiple examinations by the same specialty without good cause

Selecting Conditions and Stipulations

Negotiating the DME Stipulation

Before agreeing to a DME or opposing a motion, negotiate protective conditions:

• [ ] Examiner selection: If the defense proposes a known biased examiner, object and propose alternatives
• [ ] Scope of examination: Limit to body parts and conditions actually at issue
• [ ] Duration: Set a reasonable time limit (typically 2-4 hours for physical exams)
• [ ] Location: Reasonable proximity to the plaintiff's residence or workplace
• [ ] Audio recording: Confirm the plaintiff's right to record
• [ ] Observer: Request permission for a paralegal or nurse to attend
• [ ] No ex parte communication: Prohibit the examiner from communicating with defense counsel before the examination (beyond receiving medical records)
• [ ] Report timing: Set a deadline for production of the examiner's report
• [ ] Raw data: Require production of all raw test data and scoring sheets
• [ ] Tests to be performed: Specify or limit the testing protocols

Opposing the DME Motion

If stipulation fails, oppose the motion on the following grounds:

• Lack of good cause: The defendant has not demonstrated why this specific examination is necessary
• Scope too broad: The examination exceeds the conditions in controversy
• Biased examiner: The proposed examiner has a documented history of defense bias
• Multiple examinations: The defendant has already conducted one examination and has not shown good cause for another
• Unreasonable conditions: The proposed location, timing, or duration is unduly burdensome

Challenging Biased Defense Examiners

Identifying Biased Examiners

Many defense medical examiners are "professional witnesses" who derive a substantial portion of their income from defense medical examinations and litigation work. Indicators of bias include:

Indicator	Red Flag Level	How to Investigate
90%+ income from DME work	High	Deposition testimony, fee schedules
Consistent defense-favorable opinions	High	Prior deposition transcripts, trial testimony
Limited or no current clinical practice	Medium	CV review, medical board records
Minimal time spent on examination	High	Audio recordings, client reports
Reports with identical language across cases	High	Comparison of prior reports
Failure to review all medical records	Medium	Deposition questioning
Examiner's name appears on defense "referral lists"	Medium	Discovery, industry knowledge

Building a Bias Case

To challenge a biased examiner effectively:

• [ ] Obtain the examiner's prior deposition transcripts (depo banks, colleague networks)
• [ ] Request the examiner's complete fee schedule and annual income from DME work
• [ ] Obtain the examiner's list of cases in which they have testified or been retained in the past 4 years (CCP 2034.210)
• [ ] Analyze the examiner's opinions across cases for consistent defense-favorable patterns
• [ ] Review the examiner's publications for statements inconsistent with DME opinions
• [ ] Check the medical board for any disciplinary history
• [ ] Compare the examiner's report with the audio recording of the examination

Preparing Your Client for the DME

The DME Preparation Meeting

Schedule a preparation meeting at least one week before the DME. Cover the following:

Explain the Process:

• [ ] The examiner is hired by the defense -- they are not the client's doctor
• [ ] The examiner will write a report that may minimize or deny the client's injuries
• [ ] Everything the client says and does will be observed and documented
• [ ] The client should be truthful and cooperative but should not volunteer information

Behavioral Guidelines:

• [ ] Be polite and cooperative -- hostility will be noted in the report
• [ ] Describe symptoms honestly -- do not exaggerate or minimize
• [ ] Report all symptoms, not just the most severe ones
• [ ] If a test or movement causes pain, say so immediately
• [ ] Do not perform beyond actual ability -- stop when pain occurs
• [ ] Answer questions truthfully but concisely -- do not elaborate
• [ ] Do not discuss the case, settlement, or attorney communications

Practical Preparation:

• [ ] Bring a list of current medications
• [ ] Bring a list of current symptoms and complaints
• [ ] Know the names of all treating physicians
• [ ] Wear appropriate clothing for a medical examination
• [ ] Arrive on time and plan for the examination to take several hours
• [ ] Bring the audio recording device (or confirm firm will provide)
• [ ] Bring the observer (paralegal/nurse), if permitted

Obtaining and Analyzing DME Reports

Report Exchange Under CCP 2032.610

After the examination, the plaintiff is entitled to receive the examiner's report. Under CCP 2032.610-640:

• The plaintiff may demand a copy of the examiner's detailed written report setting out the examiner's findings, results, diagnoses, and opinions
• The demand triggers a reciprocal obligation -- the plaintiff must produce reports from their own examining physicians
• The exchange is automatic upon demand -- no motion is required

Analyzing the DME Report

When reviewing the defense examiner's report, scrutinize:

• [ ] Examination duration: Compare with the audio recording. Brief exams suggest a superficial evaluation
• [ ] Medical history accuracy: Compare the report's recitation of history with the actual medical records and client statements
• [ ] Test results: Verify that the reported findings are consistent with the actual examination (compare with audio recording)
• [ ] Conclusions vs. findings: Do the conclusions logically follow from the examination findings?
• [ ] Omissions: What did the examiner fail to examine, test, or consider?
• [ ] Consistency with medical literature: Are the examiner's opinions supported by peer-reviewed research?
• [ ] Internal contradictions: Does the report contradict itself?
• [ ] Boilerplate language: Does the report contain language identical to other reports by the same examiner?

Common Defense Examiner Tactics

Tactic	Description	Counter
Minimizing exam time	Spending 10-15 minutes on a complex injury	Audio recording proves actual duration
Attributing to preexisting conditions	Blaming all symptoms on prior conditions	Treating doctor testimony on aggravation
"Symptom magnification" finding	Claiming plaintiff exaggerates	Cross-examination with Waddell signs criteria
Ignoring objective findings	Downplaying MRI/CT results	Confront with imaging reports at deposition
Maximum Medical Improvement (MMI) opinion	Claiming plaintiff has fully recovered	Treating doctor's continued treatment plan
Recommending conservative treatment only	Opining surgery is unnecessary	Treating surgeon's surgical recommendation
Incomplete record review	Not reviewing all medical records	Deposition on which records were reviewed
Future treatment denial	Opining no future treatment needed	Life care plan and treating doctor opinions

Cross-Examining the DME Doctor

Deposition Strategy

The DME doctor's deposition is your opportunity to expose bias and weaken the defense medical evidence. Key areas:

Bias and Financial Interest:

• Total income from DME work (annual and lifetime)
• Percentage of practice devoted to litigation vs. patient care
• Number of examinations performed for the defense vs. plaintiff
• Relationship with the retaining law firm or insurance company
• Fees charged for examination, report, deposition, and trial testimony

Examination Methodology:

• Total time spent examining the plaintiff (compare with audio recording)
• Specific tests performed and results
• Tests NOT performed and reasons for omission
• Whether the examiner followed accepted medical protocols
• Comparison of examination with the examiner's own published standards

Record Review:

• Complete list of records reviewed
• Records NOT reviewed and reasons
• Whether the examiner requested additional records
• Whether the examiner reviewed the plaintiff's imaging studies personally or relied on radiology reports

Opinions:

• Pin down every opinion the examiner will offer at trial
• Basis for each opinion -- scientific literature, clinical experience, examination findings
• Alternative opinions considered and rejected
• Areas of agreement with treating physicians
• Concessions on specific findings (range of motion limitations, positive clinical findings)

Multiple Examinations

CCP 2032.220 -- One Exam Per Case

CCP 2032.220(a) provides that a party is entitled to one physical examination of any other party without leave of court. Additional examinations require a showing of good cause. Grounds to oppose a second DME:

• The defense has already examined the plaintiff and obtained a report
• No new injuries or conditions have been placed at issue since the first exam
• The defense is seeking a "second opinion" rather than examining a new condition
• The burden on the plaintiff outweighs the likely benefit of a second exam

When Additional Exams May Be Appropriate

Courts may permit additional examinations when:

• The plaintiff claims injuries in multiple specialties (e.g., orthopedic and neurological)
• The plaintiff has undergone new treatment or surgery since the first exam
• A significant time has passed since the first exam and conditions have changed
• The plaintiff has placed new conditions at issue through amended pleadings

Mental Examinations

Special Requirements for Mental Exams

When emotional distress damages are claimed, the defense may seek a mental examination under CCP 2032.310. Special considerations:

• The plaintiff must have placed their mental condition in controversy beyond garden-variety emotional distress
• The examiner must be a licensed clinical psychologist or psychiatrist
• The court must specify the diagnostic tests to be administered
• The plaintiff has enhanced privacy concerns that may limit the scope
• The examiner may not inquire into privileged matters (attorney-client communications, psychotherapist-patient privilege)

Related Pages

• Discovery -- Comprehensive California discovery guide
• Medical Records -- Obtaining and analyzing medical records
• Expert Witnesses -- Expert retention and presentation
• Depositions -- Deposing defense medical examiners
• Trial Practice -- Cross-examining DME doctors at trial
• Spoliation of Evidence -- Preserving DME recordings and reports

Cross-References

• Cross-Examination
• Expert Witnesses
• Discovery
• Depositions
• Trial Practice
• Evidence Rules

Common Questions

Sources & Legal Citations

1. California Code of Civil Procedure § 2032.010-2032.650. Physical and mental examination procedures.
2. California Code of Civil Procedure § 2032.530. Right to record the defense medical examination.
3. California Code of Civil Procedure § 2032.610-2032.650. Right to receive copies of DME reports.
4. Carpenter v. Superior Court (2006) 141 Cal.App.4th 249. Scope limitations on defense medical examinations.
5. Vinson v. Superior Court (1987) 43 Cal.3d 833. Mental examination requirements and protections.
6. Randy's Trucking v. Superior Court (2023) 91 Cal.App.5th 818. Recent DME scope and recording rights decision.