Personal Injury Law

Videotaping of Rule 35 Exams

By John A. Day

The Oklahoma Supreme Court has ruled that a plaintiff has a right to videotape a Rule 35 examination (often mistakenly referred to as an "independent medical exam"). 

The Court's conclusion:

"Our decision to allow an examinee to videotape a court-ordered independent examination was foreshadowed by our decision in McCullough v. Mathews, 1995 OK 90, ¶¶1-2, 918 P.2d 25. In McCullough we recognized that the broad language of 12 O.S. 2001 §32352allows the examinee to bring a third party representative to a court-ordered independent examination. We also determined that in addition to handwritten notes, audiotaping by the examinee, which was incorporated into the statute by the 2001 recodification of §3235,  would be allowed as a "condition" of the examination. While audio recording is capable of providing proof that the examination did not involve a malingering patient or a cursory examination, we now hold that a video recording may be a superior method of providing an impartial record of the examination. Accordingly, a party to a lawsuit who is required to submit to a medical examination pursuant to 12 O.S. 2001 §3235 is permitted to videotape the examination."  [Footnotes omitted.]

The case is Boswell v. Schultz, No 104840 (Ok. S.Ct. 12/12/07).  Read the opinion here.

Full post as published by Day on Torts on January 23, 2008 (boomark / email).