N.M. R. Civ. P. Dist. Ct. 1-035

As amended through August 23, 2024

Rule 1-035 - Physical and mental examination of persons

A.Order for examination. 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 may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner 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 and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

B.Report of examining physician.

(1) If requested by the party against whom an order is made under Paragraph A of this rule or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of a detailed written report of the examiner setting out the examiner's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner's testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

(3) This paragraph applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This paragraph does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.

N.M. R. Civ. P. Dist. Ct. 1-035

As amended, effective 1/1/1995.

ANNOTATIONS The 1995 amendment, effective January 1, 1995, substituted "suitably licensed or certified examiner" for "physician" in the first sentence in Paragraph A, substituted "examiner" for "examining physician" in the first sentence and "an examiner" for "a physician" in the last sentence in Paragraph B(1), substituted "an examiner" for "an examining physician" and "the examiner" for "the physician" in Paragraph B(3), and made gender neutral changes throughout the rule. Applicability. - This rule applies only where an examination has been ordered by the court pursuant thereto and the person examined has requested delivery of a copy of the report of that examination. State ex rel. Miller v. Tackett, 1961-NMSC-053, 68 N.M. 318, 361 P.2d 724. Court may refuse psychological examination of party's fiancee in child custody hearing. - The trial court does not abuse its discretion in a child custody hearing in refusing to order a psychological examination of a party's fiancee, who is not a party to the proceeding. Lopez v. Lopez, 1981-NMSC-138, 97 N.M. 332, 639 P.2d 1186. Court order required to stay taking of deposition. - Party seeking protective order to stay taking of deposition of witness to perpetuate testimony until court first determined competency of witness must file such motion prior to the date designated for the taking of the deposition; until a protective order is issued, there is nothing to delay the taking of the deposition. In re Bartow, 1984-NMCA-074, 101 N.M. 532, 685 P.2d 387. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Civil Procedure," see 11 N.M.L. Rev. 53 (1981). For annual survey of New Mexico law relating to Civil Procedure, see 13 N.M.L. Rev. 251 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 23 Am. Jur. 2d Depositions and Discovery §§282 to 313. Compulsory examination for venereal disease, 2 A.L.R. 1332, 22 A.L.R. 1189. Duty of one seeking compensation under Workmen's Compensation Act to submit to X-ray examination, 6 A.L.R. 1270, 41 A.L.R. 866. Power to require plaintiff to submit to physical examination, 51 A.L.R. 138, 68 A.L.R. 635, 91 A.L.R. 1295, 125 A.L.R. 879. Blood test to establish identity or relationship, 115 A.L.R. 167, 163 A.L.R. 939. Physical examination of party in action in federal court, 131 A.L.R. 810. Nature, extent and conduct of physical examination of party to action or proceeding to recover for personal injury or disability, 135 A.L.R. 883. Blood grouping tests, 163 A.L.R. 939, 46 A.L.R.2d 1000. Requiring party to submit to physical examination or test as violation of constitutional rights, 164 A.L.R. 967, 25 A.L.R.2d 1407. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Admissibility of X-ray report made by physician taking or interpreting X-ray pictures, 6 A.L.R.2d 406. Fingerprints, palm prints or bare footprints as evidence, 28 A.L.R.2d 1115, 45 A.L.R 4th 1178. Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434. Federal Rule of Civil Procedure 35(b)(1) and (2) and similar state statutes and rules pertaining to reports of physician's examination, 36 A.L.R.2d 946. Power to require physical examination of injured person in action by his parent or spouse to recover for his injury, 62 A.L.R.2d 1291. Admissibility in civil action of electroencephalogram, electrocardiogram or other record made by instrument used in medical test, or of report based upon such test, 66 A.L.R.2d 536. Right to copy of physician's report of pretrial examination where there is no specific statute or rule providing therefor, 70 A.L.R.2d 384. Court's power to order physical examination of personal injury plaintiff as affected by distance or location of place of examination, 71 A.L.R.2d 973. Physical examination of allegedly negligent person with respect to defect claimed to have caused or contributed to accident, 89 A.L.R.2d 1001. Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244. Right of party to have his attorney or physician, or a court reporter, present during his physical or mental examination by a court appointed expert, 7 A.L.R.3d 881. Timeliness of application for compulsory physical examination of injured party in personal injury action, 9 A.L.R.3d 1146. Commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to discovery, 21 A.L.R.3d 912. Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401. Right of defendant in personal injury action to designate physician to conduct medical examination of plaintiff, 33 A.L.R.3d 1012. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Right of party to have attorney or physician present during physical or mental examination at instance of opposing party, 84 A.L.R.4th 558. 27 C.J.S. Discovery §§ 110, 111.