1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 28 Physical and Mental

Examination of Persons

Rule 28

PHYSICAL AND MENTAL EXAMINATION OF PERSONS

This is the fifth and last mode of discovery.
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 plaintif
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 plaintif 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.) annulment of marriage on the ground psychological incapacity. Under the Family
Code, however, the state of psychological 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.
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.
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

Lakas Atenista
Ateneo de Davao University College of Law

66

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 28 Physical and Mental

Examination of Persons

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
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)

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 Mayas 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 diferent modes of discovery, when is leave of court required? Not
required?
A: In the following cases:
1.) Depositions
yet

pending action, no answer filed

pending action, answer filed

already
before action or pending appeal
2.) Interrogatories no answer filed yet
answer filed already
3.) Request for admission
4.) Production or Inspection of Documents or Things
5.) Physical and Mental Examination of Persons

REQUIRED
NOT REQUIRED
REQUIRED
REQUIRED
NOT REQUIRED
NOT REQUIRED
REQUIRED
REQUIRED

published by
LAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa Angeles Glenda Buhion Joseph Martin Castillo
Aaron Philip Cruz Pearly Joan Jayagan Anderson Lo Yogie Martirizar Frecelyn Mejia Dorothy Montejo
Rowena Panales Regina Sison Ruby Teleron Marilou Timbol Maceste Uy
Perla Vicencio Liberty Wong Jude Zamora
Special Thanks to: Marissa Corrales and July Romena
SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph Apao Melody Penelope Batu Gemma
Betonio Rocky Cabarroguis Charina Cabrera Marlon Cascuejo Mike Castaos Karen de Leon
Cherry Frondozo Jude Fuentes Maila Ilao Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya Jennifer Ramos
Paisal Tanjili

Lakas Atenista
Ateneo de Davao University College of Law

67

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 28 Physical and Mental

Examination of Persons

LAKAS ATENISTA 20012002: REVISION COMMITTEE: Melissa Suarez Jessamyn Agustin Judee Uy Janice
Joanne Torres Genie Salvania Pches Fernandez Riezl Locsin Kenneth Lim Charles Concon Roy Acelar
Francis Ampig Karen Cacabelos Maying Dadula Hannah Examen Thea Guadalope Myra Montecalvo Paul
Ongkingco Michael Pito Rod Quiachon Maya Quitain Rina Sacdalan Lyle Santos Joshua Tan
Thaddeus Tuburan John Vera Cruz Mortmort

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Ateneo de Davao University College of Law

68