1997 Rules on Civil Procedure Rule 28 – Physical and Mental

2001 Edition <draft copy. pls. check for errors> Examination of Persons

Rule 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS

This is the fifth and last mode of discovery.

This mode of discovery is available in an action in which the mental or

physical condition of a party is in controversy.

So in order to even things, I will have to request you to submit to a neutral

doctor or psychiatrist for a physical or mental examination. So the court will
issue an order. Konti man lang ang kasong ganito. For example, damage suit in
damage cases, the plaintiff may be exaggerating his injuries.

The only way to confirm it is to have another doctor examine him to find out
whether his injury is really genuine or sinadya may be for the purpose of
securing a bigger mount of damages. Remember the joke which we mentioned in
Evidence about the plaintiff who met an accident na na-dislocate yung shoulder,
so permanent ang injury. So when he testified in court, he was asked to raise his
arm – higher, higher please! No more – the injury is permanent.

Sabi ng court, “So that was after the accident. What about before the injury?
How high can you raise you arm?” A, ganito o! So there is no more need for a
physical examination because he has already demonstrated it (he was just
exaggerating his injury).

SEC. 1. When Examination may be ordered – In an

action in which the mental or physical condition of
a party is in controversy, the court in which the
action is pending may in its discretion order him
to submit a physical or mental examination by a
physician (1)

SEC. 2. Order for examination – The order for

examination may be made only upon motion for good
cause shown and upon notice to the party to be
examined and to all other 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. (2)

Rule 28 applies in all actions where the mental or physical condition of a

party is in question or controversy. EXAMPLES:

a.) Declaration of nullity of marriage on the ground psychological

incapacity. Under the Family Code, however, the state of psychological

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1997 Rules on Civil Procedure Rule 28 – Physical and Mental
2001 Edition <draft copy. pls. check for errors> Examination of Persons

incapacity must not have been existing only now for the first time. It
must have existed at the time of the marriage;
b.) annulment of marriage on the ground of impotency. The court can issue
an order to subject the party to undergo physical or medical
examination by a doctor to test whether the allegation is true or not;
c.) annulment of contract on the ground of insanity at the time of execution
(lack of consent);
d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am
the defendant and I believe that you are merely exaggerating the extent
of your injury so that your claim for damages will be higher, and
diskumpiyado ako sa doctor mo, I will ask the court to issue an order
for you to undergo physical examination by another doctor, so that we
will know whether your claim is really valid or not.
e.) the mental condition of a party is in controversy in proceedings for
guardianship over an imbecile or insane person, while the physical
condition of a party is generally involved in physical injuries cases.

Since the results of the examination are intended to be made public, the
same are not covered by the physician-patient privilege (Sec. 24b, R 130).

Q: Give the requisites of physical and mental examination of persons under

Rule 28:
A: The following are the requisites:
1.) The physical or mental condition must be a subject of controversy of the
action;
2.) A motion showing good cause must be filed; and
3.) Notice of the motion must be given to the party to be examined and to
all other parties;
4.) the motion shall specify the time, place, manner, conditions, and scope
of the examination and the person or persons by whom it is made.

Sec. 3. Report of findings. - If requested by the

party examined, the party causing the examination
to be made shall deliver to him a copy of a
detailed written report of the examining physician
setting out his findings and conclusions. After
such request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a like
report of any examination, previously or thereafter
made, of the same mental or physical condition. If
the party examined refuses to deliver such report,
the court on motion and notice may make an order
requiring delivery on such terms as are just, and
if a physician fails or refuses to make such a

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1997 Rules on Civil Procedure Rule 28 – Physical and Mental
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report the court may exclude his testimony if

offered at the trial. (3a)

Sec. 4. Waiver of privilege. - 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 he 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 him in
respect of the same mental or physical examination.
(4)

Where the party examined requests and obtains a report on the results of the
examination, the consequences are:

1. he has to furnish the other party a copy of the report of any previous or subsequent
examination of the same physical and mental examination; and
2. he waives any privilege he may have in that action or any other involving the same
controversy regarding the testimony of any other person who has so examined him or
may thereafter examine him.

Example: Maya is subjected to examination by a doctor upon motion by Dino

under Rule 28. So Maya asks for a copy of the finding after examination. When
Maya asks for the finding, Dino can also ask for Maya’s examination by the
personal doctor of Maya, previously made or thereafter.

The doctor cannot be compelled to relay what the patient told her. So if the
doctor refuses to deliver such report, then under Section 3, he cannot testify. He
cannot give evidence.

Also, once a party asks for a report of the examination, he automatically

waives the privilege of physician-patient relationship. So if Dino does not want
to waive the privilege, he should not ask a copy of the report of the physician.

Q: Going back to the different modes of discovery, when is leave of court

required? Not required?
A: In the following cases:

1.) Depositions – pending action, no answer REQUIRED

filed yet NOT
– pending action, answer filed REQUIRED
already REQUIRED
– before action or pending

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appeal

2.) Interrogatories – no answer filed yet REQUIRED

– answer filed already NOT
REQUIRED
3.) Request for admission NOT
REQUIRED
4.) Production or Inspection of Documents or REQUIRED
Things
5.) Physical and Mental Examination of Persons REQUIRED

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