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News & trends
March 2008 | Volume 44, Issue 3
Oklahoma high court approves videotaping of defense medical exams
Allison Torres Burtka, Associate Editor
The Oklahoma Supreme Court has ruled that a plaintiff in an auto
case can videotape his examination by a defense-appointed physician.
In a 5-4 opinion, the court said its decision reflects the goal of
all pretrial discovery, which must be “to promote the discovery
of the true facts and circumstances of the controversy, rather than
to aid in their concealment.” (Boswell v. Schultz,
2007 WL 4242690 (Okla. Dec. 4, 2007).)
In July 2006, Cody and Cheryl Boswell sued Kandee Schultz for injuries
they suffered in an auto accident. Schultz requested an independent
medical examination performed by a doctor of her choice, in accordance
with state law. In May 2007, Cody went to the office of Dr. Michael
Winzenread with his lawyer and a video camera.
Winzenread refused to allow any videotaping, saying it was annoying,
disruptive, and an invasion of other patients’ privacy. He also
refused to conduct a scheduled examination of Cheryl. The Boswells,
for their part, declined to undergo the exams without videotaping,
and Cody left the office. Shortly after this, Schultz filed a motion
to compel, saying the Boswells had no legal basis for recording their
exams.
Oklahoma law requires plaintiffs in personal injury cases to submit
to an independent medical assessment but also allows the plaintiffs
to bring a “representative” to the doctor’s office.
Howard Israel, an Oklahoma City lawyer who represented the Boswells,
said the courts “have been very restrictive about what a ‘representative’
means, and there has been much debate about this.”
Israel said that when he worked on a similar case years ago, the
doctor told him to leave the examination room: “The trial court
said only another doctor qualified as a representative, while the
appellate court said an attorney was the best representative,”
Israel recalled. “In another case—not one of mine—the
court allowed audio recording of an examination. [Boswell]
was the next logical progression.”
Writing for the court, Chief Justice Yvonne Kauger cited the audio-recording
case (McCullough v. Matthews, 918 P.2d 25 (Okla. 1995)) and
recent state supreme court decisions from Indiana and Kentucky allowing
videotaped examinations. Kauger said Oklahoma’s personal injury
law did a good job of protecting defendants, allowing the defense
to “fully investigate and prepare its cases, to ascertain whether
the plaintiff actually has the injuries which are alleged to have
been caused by a defendant.”
“However, the purpose of the statute is twofold,” Kauger
wrote. “The obvious counterpoint of allowing a full investigation
would be to make certain that the injured party has an accurate and
complete record of the proceeding, and to allow the party undergoing
an examination to have reliable proof that the examiner is unbiased
and not merely a shill for the opposing party. Allowing an electronic
recording would expose the true facts and strike a balance to prevent
either a false claim or a cursory exam.”
The court also rejected defense claims that videotaping is intrusive,
saying that plaintiffs and doctors—or, failing that, the trial
court—could set reasonable parameters for the exam when “the
time, place, manner, conditions, and scope of the examination are
set.”
The decision is already having ramifications far beyond personal
injury cases, Israel noted.
“I have a worker’s comp case coming up where the defense
is saying that this decision is limited to personal injury cases,”
he said, adding that he received an alert from the Oklahoma Indigent
Defense Fund suggesting that criminal defense lawyers apply it to
competence examinations in capital cases.
“This has been of concern for a long time,” Israel said.
“I’m by no means the first in this fight. What’s
been prevalent in Oklahoma is insurance companies designating their
hired doctors as independent medical examiners—which ev;erybody
knows they’re not. With this decision, the court has taken a
conten;tious issue and finally put it to bed.”
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