The Defense Physical Exam is Not an Interrogation: Attorney Clifton Smoot Authors Plaintiff Magazine Article

A defense doctor is not entitled to an oral history from the plaintiff. In his Plaintiff magazine article "The Defense Physical Exam (Medical Exam) is Not an Interrogation," Attorney Clifton Smoot explains why a defense medical examiner is not permitted under Code of Civil Procedure section 2031.010 to interview the plaintiff during a Defense Physical Exam (DPE).

The Code of Civil Procedure does not permit defense's "hired gun" doctors to collect an oral history during the examination-that is the point of deposition. More importantly, Smoot writes, having a defense doctor ask questions under the guise of obtaining a medical history can pose a serious hazard in litigation. The DPE occurs without counsel, court reporter, oath, or procedural safeguards. "Plaintiff's counsel should begin negotiating fair limits of the DPE by serving timely objections to the DPE notice," writes Smoot. "The objections should include one to the effect that plaintiff will appear on the condition that plaintiff gives no oral history during the examination. Plaintiff should agree to answer questions that reasonably relate to current symptoms or to the examination itself."

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