Tuesday, May 21, 2019

The May 2014 issue of Plaintiff Magazine, discusses how to prepare a plaintiff for a mental examination. 

Mental exams are the only discovery tool requiring a plaintiff to submit to hours of examination outside the presence of an attorney.  Depending on the injuries a plaintiff claims, the plaintiff may need to undergo different types of mental exams.

The plaintiff may be asked about childhood events, mental disorders.  For the defendant the diagnoses may provide alternative avenues of causation for the plaintiff’s complaints, and may create a prejudice against the plaintiff and undermine credibility.

Educating a plaintiff on the types of injuries that might require examination is important.  When a plaintiff is not able to have confidence to overcome the probing, the plaintiff may need to withdraw certain claims.  The plaintiff can stipulate that no claim is being made for mental or emotional distress over and above what is usually associated with the physical injuries claimed and no expert testimony regarding this usual mental distress will be offered at trial.

In California, mental examinations may be obtained of a party whose mental condition is placed in controversy.  Unless the parties agree, a court order is required to obtain a mental examination.

A motion shall be granted only for good cause when there is (1) relevancy and (2) specific facts justifying discovery.  For example, a mental exam may be granted when a plaintiff alleges sexual harassment that leads to diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, anxiety, loss of reputation, emotional distress.

The defendant needs to demonstrate specific facts justifying the discovery. The defendant may define the exam in a meet up notice.  The exam may be a privacy invasion.  The examiner must provide a list of the diagnostic tests and procedures.

In California, mental evaluations must be performed by a licensed physician, or a licensed clinical psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.

During evaluation, the attorney may not be allowed in the room.  The exclusion of everyone, other than the examiner and plaintiff, is based on the need to establish rapport and to avoid interference with the psychological process. The exam requires an atmosphere conducive to freedom of expression.

After the exam, in California, the plaintiff may demand the psychiatrist/psychologist produce, within 30 days, a detailed report on the history, the examination findings, test results, diagnosis, prognosis, and conclusions.

Read the Article Here