December 12, 2018

Personal Injury Medical Reports

There are several ways for a party in a personal injury case to obtain medical reports from the opposing party: (1) Stipulation; (2) Discretionary court order.

Generally, there are cut-offs on discovery, with deadlines before the initial trial date; and discovery motions must be heard before the initial trial date. In a demand for medical reports, the demand must be served so that the responses are due before the first trial date.

A continuance or postponement of the trial date does not operate to reopen discovery proceedings. An exception may be given when the parties stipulate to extend the time for completion of discovery proceedings or for hearing discovery motions; or to reopen discovery after a new trial date for the action has been set. This agreement may be informal, but all parties must consent to it in order for it to be effective. The agreement must be confirmed in a writing that specifies the extended date. The stipulation does not require the court to postpone or continue the trial date.

If the opposing party has objected to the discovery, the stipulation exception would not be helpful, unless the opposing party gets convinced to stipulate to an extension.

Another way to extend the discovery deadline may be to make a motion to the court. On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, after the cut-off dates; or, it may reopen discovery after a new trial date has been set. The required motion may need to be a noticed motion, rather than an ex parte application. Ex parte means that one person shows up in court to ask the judge to decide on something. In a noticed motion, the motion may need to be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

In exercising its discretion to grant or deny the motion, the court considers any matter relevant to the leave requested, including the following factors: (1) The necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Whether permitting the discovery or granting the discovery motion will likely prevent the case from going to trial on the date set, interfere with the trial calendar, or prejudice any party; (4) The length of time elapsed between any date previously set and the date presently set for trial.

Discovery of the medical reports seems to fall within the factors listed above, or other reasonable and good faith reasons. It may be possible for a party in a personal injury case to file a motion compelling the opposing party to produce the reports up to and through trial.

However, before filing a motion, a party should check on whether the court imposes a monetary sanction for abuse of discovery against the losing party on the motion. If the court finds that the party acted with substantial justification or that other circumstances make the imposition of the sanction unjust, a sanction may not be imposed.

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