In March, I wrote a blog post discussing whether it makes sense for to videotape medical exams by the defendant’s lawyer’s doctor. Last week, the Oklahoma Supreme Court ruled that a plaintiff who is required to submit to an “independent medical examination” (hereinafter the more honest “defense medical exam”) may videotape the exam.
In this case, the doctor had refused a plaintiff’s request to videotape the DME because (1) it would invade the privacy of others in the office; (2) it would be “annoying and distracting” to the DME doctor and his staff; and (3) it would interfere with the doctor’s examination.
Actually, these are not the doctor’s objections. These are the defense lawyer’s objections. The doctor was more than happy to allow the DME to be recorded as long as the defendant’s lawyer did not object. Moreover, all of these objections are silly. First, obviously the video should only be permitted to videotape the doctor’s examination of the plaintiff. Second, for $500 an hour, or whatever the doctor is charging, he should be able to bear a little annoyance and distraction. Finally, there is no reason to believe that videotaping at the DME would interfere with the examination.
The Oklahoma Supreme Court followed the wisdom of courts in Kentucky and Indiana, which permitted audio recording of DMEs, and found no reason why the logic did not extend to videotaping an exam.
What I learned from reading this opinion is a little more on the history of compelled medical exams. In the nineteenth century, the U.S. Supreme Court in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891) affirmed the longstanding common law that compelled medical examinations in injury cases were “repugnant to a person’s privacy and bodily integrity.”
Obviously, that view has changed over time. I agree that the more modern view is the appropriate view because if a plaintiff puts their health at issue, it is fair game for the defendant to be able to have the ability to evaluate those injuries in the adversarial system. But it underscores that medical exams are not a right to which plaintiffs must blithely acquiesce without fair conditions and limitations.
Again, as I wrote back in March, while I think it should be permissible to videotape a DME, I question whether personal injury lawyers want to go down this path. While I would love to have a library of tapes of a given doctor’s DMEs, the potential harm might outweigh the benefits. I think it would force DME doctors to do more complete examinations than what is often an assembly line examination.
Moreover, I think the DME doctor would likely maintain a nice guy persona during the examination. A part of the argument for videotaping is that with a videotape, the jury can see what a jerk the doctor really is. But how many doctors are going to come off poorly when they know they are being videotaped? An even graver concern is that you have not fully prepared your witness for trial testimony at the time of the DME, leaving him/her vulnerable to making poor judgments during the examination, such as overstating the scope of the injuries, or acting defensively or inappropriately with the doctor, who is more likely to be mindful of the impact of the videotape.