Rule gives court discretion to pick M.D. for exams

Under Rule 4:10 a trial court may select the doctor to examine the plaintiff, but a court is not required to do so, a Fairfax County Circuit Court judge has ruled.

In a personal injury dispute, the defendant filed a motion to compel a Rule 4:10 examination of the plaintiff by a neurologist.

The plaintiff objected to the doctor selected by the defendant and requested that the trial court appoint a neutral examiner of the court’s choosing or impose conditions upon the examination.

Denying the motion to appoint an examiner of its own choosing, the court ordered the examination by the neurologist selected by the defendant, subject to terms ordered by the court.

“Rule 4:10 provides for a variety of means by which the examiner may be chosen,” Judge Michael F. Devine wrote. “The Rule affords the trial court the discretion to order an examination by a health care provider chosen by the defense who is subject to court-ordered limitations on the manner, conditions and scope of the examination. Rule 4:10 also permits the trial court to select the examiner from several candidates suggested by the parties. Neither method of selection is preferred nor prohibited. Trial courts are afforded the discretion to choose how to choose the examiner.”

The four-page decision is Pratt v. Maric (VLW 025-8-034).

Neither Boris Kuperman of Gore & Kuperman in Fairfax, who represented the plaintiff, nor Fairfax attorney Michael E. Thorsen of McGavin, Boyce, Bardot, Thorsen & Katz, who represented the defendant, responded to a request for comment.

Exam in negligence suit

Robert Pratt alleged that at 5:50 p.m. on Nov. 19, 2021, he was stopped at a red traffic signal on eastbound Dolley Madison Boulevard in McLean.

Pratt also claimed that Dubravka Maric, who was also traveling eastbound on the same street at a speed in excess of 45 mph, was distracted by the cellphone in her hand and did not slow or stop as she approached the red traffic signal.

Maric crashed into the rear of Pratt’s car with such force to cause extensive property damage and injuries to Pratt that rendered him unconscious from the impact.

By February 2022, Pratt reported having difficulties with stammering and word searching, as well as experiencing frequent headaches, dizziness, nausea, sensitivity to light and noise, blurred vision, mental fogginess, difficulty concentrating, memory issues, irritability, mood instability and other symptoms.

After Pratt filed a two-count complaint alleging negligence and negligence per se, counsel for Maric retained a neurologist to examine Pratt pursuant to Rule 4:10.

Pratt objected, requesting that the court appoint a “neutral” examiner selected by the court, or, alternatively, impose conditions upon the examination.

Rule 4:10

Rule 4:10 of the Rules of the Supreme Court of Virginia provides:

“When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending, upon motion of an adverse party, may order the party to submit to a physical or mental examination by one or more health care providers, as defined in § 8.01-581.1, employed by the moving party or to produce for examination the person in the party’s 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, must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and must fix the time for filing the report and furnishing the copies.”

Predecessor rule, case law all signal discretion

The Rule is silent regarding how or by whom the health care provider is selected, the court noted, and neither provides for nor prohibits selection by the defendant or by the court. Rule 4:10’s predecessor (Rule 3:23(d)) similarly did not identify how or by whom the examining health care provider would be chosen.

Interpreting the prior iteration, the state’s highest court noted 1957’s Virginia Linen Service, Inc. v. Allen that “[i]f the court wishes it may require counsel to make suggestions or furnish a list of qualified persons. The court may investigate their fitness and their availability, then make its selection and name its choice in its order.”

“The permissive and discretionary nature of a trial court’s authority to select the examiner itself in this fashion is manifested by the words chosen by the Supreme Court,” the court wrote. “As Rule 4:10 likewise does not specify how or by whom the examiner is to be selected, a trial court today certainly has the same discretion.”

Judge Devine “respectfully disagree[d]” with a recent decision from a colleague, Van Buskirk v. O’Meara, where the court found that a defendant choosing an examiner “is not what the Rule establishes.”

This “oberter dictum in Van Buskirk finds no support in the text of Rule 4:10 – which is silent on the method for choosing the examiner – and conflicts with Virginia Linen Service which held that the trial court’s authority to choose an examiner from a roster of candidates was permissive, not mandatory,” he said. “Had the Supreme Court intended to require trial courts to independently select examiners, it could have easily made mandatory the permissive process outlined in Virginia Linen Service when it adopted Rule 4:10 and repealed 3:23(d). However, the Supreme Court did not do so.”

Exercising its discretion under Rule 4:10, the court ordered an examination by the neurologist selected by Maric, subject to terms ordered by the court.