1997 Rules on Civil Procedure Rule 28 Physical and Mental

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

Rule 28 to submit a physical test whether the allegation is true

PHYSICAL AND MENTAL EXAMINATION OF or mental or not;
PERSONS examination by a c.) annulment of contract on the
physician (1) ground of insanity at the time of
This is the fifth and last mode of discovery. execution (lack of consent);
SEC. 2. Order for d.) Physical disability due to quasi-
This mode of discovery is available in an action examination The delicts (e.g. vehicular accident). If
in which the mental or physical condition of a party is order for I am the defendant and I believe
in controversy. examination may be that you are merely exaggerating
made only upon the extent of your injury so that
So in order to even things, I will have to motion for good your claim for damages will be
request you to submit to a neutral doctor or cause shown and higher, and diskumpiyado ako sa
psychiatrist for a physical or mental examination. So upon notice to the doctor mo, I will ask the court to
the court will issue an order. For example, damage party to be examined issue an order for you to undergo
suit in damage cases, the plaintiff may be and to all other physical examination by another
exaggerating his injuries. parties, and shall doctor, so that we will know
specify the time, whether your claim is really valid
The only way to confirm it is to have another place, manner, or not.
doctor examine him to find out whether his injury is conditions, and scope e.) the mental condition of a party is
really genuine or sinadya may be for the purpose of of the examination in controversy in proceedings for
securing a bigger mount of damages. Remember the and the person or guardianship over an imbecile or
joke which we mentioned in Evidence about the persons by whom it insane person, while the physical
plaintiff who met an accident na na-dislocate yung is to be made. (2) condition of a party is generally
shoulder, so permanent ang injury. So when he involved in physical injuries cases.
testified in court, he was asked to raise his arm Rule 28 applies in all actions where
higher, higher please! No more the injury is the mental or physical condition of a party is in Since the results of the
permanent. question or controversy. EXAMPLES: examination are intended to be
made public, the same are not
Sabi ng court, So that was after the accident. a.) Declaration of nullity of covered by the physician-patient
What about before the injury? How high can you marriage on the ground privilege (Sec. 24b, R 130).
raise you arm? A, ganito o! So there is no more psychological incapacity.
need for a physical examination because he has Under the Family Code, Q: Give the requisites of physical and mental
already demonstrated it (he was just exaggerating however, the state of examination of persons under Rule 28:
his injury). psychological incapacity must A: The following are the requisites:
not have been existing only 1.) The physical or mental condition
SEC. 1. When now for the first time. It must must be a subject of controversy
Examination may be have existed at the time of the of the action;
ordered In an action in marriage; 2.) A motion showing good cause
which the mental or b.) annulment of marriage on the must be filed; and
physical condition of a ground of impotency. The 3.) Notice of the motion must be
party is in controversy, court can issue an order to given to the party to be examined
the court in which the subject the party to undergo and to all other parties;
action is pending may in physical or medical 4.) the motion shall specify the time,
its discretion order him examination by a doctor to place, manner, conditions, and

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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

scope of the examination and the ordered or by taking

person or persons by whom it is the deposition of the Also, once a party asks for a report of the
made. examiner, the party examination, he automatically waives the privilege of
examined waives any physician-patient relationship. So if Maya does not
Sec. 3. Report of privilege he may want to waive the privilege, she should not ask a
findings. - If requested by have in that action or copy of the report of the physician.
the party examined, the any other involving
party causing the the same controversy,
examination to be made regarding the Q: Going back to the different modes of
shall deliver to him a testimony of every discovery, when is leave of court required? Not
copy of a detailed other person who has required?
written report of the examined or may A: In the following cases:
examining physician thereafter examine
setting out his findings him in respect of the Depositions pending action, no REQUIRE
and conclusions. After same mental or answer filed yet D
such request and physical examination. pending action, answer filed NOT
delivery, the party (4) already REQUIRE
causing the examination before action or pending appeal D
to be made shall be Where the party examined requests and REQUIRE
entitled upon request to obtains a report on the results of the examination, D
receive from the party the consequences are: Interrogatories no answer filed REQUIRE
examined a like report of yet D
any examination, 1. he has to furnish the other party a copy answer filed already NOT
previously or thereafter of the report of any previous or subsequent REQUIRE
made, of the same examination of the same physical and mental D
mental or physical examination; and Request for admission NOT
condition. If the party 2. he waives any privilege he may have in REQUIRE
examined refuses to that action or any other involving the same D
deliver such report, the controversy regarding the testimony of any other Production or Inspection of REQUIRE
court on motion and person who has so examined him or may Documents or Things D
notice may make an thereafter examine him. Physical and Mental Examination of REQUIRE
order requiring delivery Persons D
on such terms as are Example: Maya is subjected to examination
just, and if a physician by a doctor upon motion by Dino under Rule 28.
fails or refuses to make So Maya asks for a copy of the finding after
such a report the court examination. When Maya asks for the finding,
may exclude his Dino can also ask for Mayas examination by the
testimony if offered at personal doctor of Maya, previously made or
the trial. (3a) thereafter.

Sec. 4. Waiver of The doctor cannot be compelled to relay

privilege. - By requesting what the patient told her. So if the doctor refuses
and obtaining a report of to deliver such report, then under Section 3, he
the examination so cannot testify. He cannot give evidence.

Lakas Atenista 31
Ateneo de Davao University College of Law