By Jeremy S. RibandoAs defense attorneys in Ohio, we regularly request Independent Medical Examinations (IMEs) of plaintiffs who allege physical or mental injuries. Usually, these requests proceed without incident through informal communication between counsel, whereby a “Notice of Independent Medical Exam” is sent and acknowledged. However, occasionally we encounter opposing counsel who insist that the Ohio Rules of Civil Procedure do not recognize a notice for an IME. They insist that we must follow an alternative, more formal path to Civ.R. 35, obtain a court order, file a motion to compel a medical exam, demonstrate evidence of both an existing medical controversy, and establish good cause for the examination. In turn, the court order, if granted, must then properly address the scope of the IME or risk having the order overturned on appeal. See Stratman v. Sutantio, 2006-Ohio-4712, ¶10 (10th Dist.) (holding that while the trial court’s order under Rule 35 was proper in practice, the order failed to address the scope of the IME, and therefore, appellant’s assignment of error was sustained).
This shift from informal to formal can create unnecessary friction, delay, and expense in the litigation process.
The Letter of the Law vs. Common Practice
Ohio Rule of Civil Procedure 35 explicitly states that when a party’s physical or mental condition “is in controversy,” the court “may order” that party to submit to a physical or mental examination. The rule further specifies that this order may be made “only on motion for good cause shown.”
On its face, Rule 35 appears to require that:
- A formal motion to the court may not be required but is highly suggested
- A demonstration of “good cause” must be shown
- A court order is required for every IME
Yet, in practice, most practitioners handle IMEs through simple notice procedures, similar to those used for depositions under Rule 30. Consistent with Ohio courts’ preference favoring informal, cooperative discovery, this informal approach has become the norm despite the seemingly mandatory language of Rule 35.
Historical Development of Informal Practice
The evolution toward informal IME procedures wasn’t accidental. It emerged from a combination of practical necessity and Ohio’s broader commitment to cooperative discovery.
In the 1970s and 1980s, as civil litigation caseloads grew, courts became increasingly burdened with procedural motions. Ohio’s courts, like many others, began encouraging attorneys to resolve discovery matters without court intervention whenever possible. This philosophy was formally recognized in the 1990s with amendments to the Ohio Rules of Civil Procedure that emphasized cooperation and informal resolution of discovery disputes.
The Ohio Supreme Court has repeatedly emphasized that one of the “purposes of the rules of civil procedure is to eliminate surprise. This is accomplished by way of a discovery procedure which mandates a free flow of accessible information between the parties upon request…” O’Connor v. Cleveland Clinic Found., 2005-Ohio-2238, ¶ 15, quoting Vaught v. Cleveland Clinic Found., 2003-Ohio-2181, ¶ 25. This spirit of open discovery naturally led to a more streamlined approach to IMEs.
The informal practice also developed because, in personal injury cases, the “good cause” requirement is typically self-evident. When a plaintiff places their physical or mental condition at issue by filing a lawsuit seeking damages for alleged injuries, the relevance of an IME is clear. Courts recognized that requiring formal motions in such straightforward situations was inefficient.
When Opposing Counsel Demands Formality
Despite the well-established informal practice, some plaintiff’s attorneys will occasionally insist on strict compliance with Rule 35’s literal requirements. This may happen for various reasons:
- Strategic delay tactics
- Attempting to limit the scope of examination
- Inexperience with standard practices
- Genuine concerns about the particular examination being requested
Whatever the motivation, defense attorneys need to be prepared to respond effectively. Here are some practical tips for navigating these situations:
1. Emphasize Established Practice
Remind opposing counsel that informal IME procedures are the norm in Ohio practice. Cite local custom and practice in your jurisdiction. Most experienced litigators will acknowledge this reality, even if they’re posturing for their client.
2. Document Everything
If you anticipate resistance, document all communications regarding the IME carefully. Send detailed explanations of the examination’s scope, purpose, and relevance to the case. This documentation can later serve as evidence of your good faith efforts if court intervention becomes necessary.
3. Be Prepared to Show Good Cause
While formal motions should be unnecessary in most cases, be prepared to articulate “good cause” if pushed. This typically involves demonstrating:
- The relevance of the examination to claims or defenses
- Why existing medical records are insufficient
- The qualifications of the proposed examiner
- The limited scope and non-invasive nature of the examination
4. Seek Informal Judicial Guidance
Before filing a formal motion, consider requesting an informal conference with the judge or magistrate. Many Ohio courts offer phone conferences or informal hearings to resolve discovery disputes without full briefing. This approach often leads to quick resolution without the expense of formal motions.
5. File a Preemptive Motion When Necessary
If informal efforts fail, consider filing a motion for an IME order that preemptively addresses the “good cause” requirement, while laying out the precise scope necessary for the proposed IME. This puts the opposing party in a responsive position rather than allowing them to control the timing of the dispute.
The Practical Advantages of Informality
It’s worth remembering why informal IME procedures benefit all parties:
- Efficiency: Avoiding unnecessary motion practice saves time and resources
- Cost-effectiveness: Reduced attorney fees and court costs
- Flexibility: Parties can more easily accommodate scheduling needs
- Preservation of judicial resources: Courts can focus on substantive issues
- Maintenance of cooperative relationships: Less adversarial approach to discovery
Conclusion
The tension between Civil Rule 35’s literal requirements and established informal practice creates an interesting dynamic in Ohio civil litigation. While the rule’s language suggests a formal process, practical considerations have led to streamlined procedures that better serve the interests of justice and efficiency.
Remember that the ultimate goal is obtaining the necessary medical information to properly evaluate and defend your case. Whether through informal notice or formal court order, keeping this objective in mind will help guide your approach to these sometimes challenging situations.