VIDEOTAPED
MEDICAL EXAMINATION BILL
A
suggested draft
by
Health
Administration Responsibility Project, Inc.
Harvey
S. Frey MD, PhD, Esq., Director
(310)
394-6342 hsfrey@harp.org
A Bill to:
amend Code of Civil Procedure Section 2032.510
add Business and Professions Code Section 811
THE PEOPLE OF
SECTION 1.
The Legislature finds and declares as follows:
(a) The Code of Civil Procedure currently
allows videotaping of oral depositions, but only audiotaping
of medical physical examinations.
(b) All reason and experience, however,
would suggest that one would audiotape words, as in an oral deposition, and
videotape physical events, as in a medical examination.
(c) These rules date from 1986, and appear
to be based on the technology of that time, when videotaping required heavy
equipment, bright lights, and additional personnel.
(d) With the advent of tiny portable videocameras, no larger than the old audiotaping
equipment, that rationale is obviously gone.
(e) This issue arises most commonly in
Insurance-related Medical Examinations of insureds.
(f) Any privacy concerns would be the examinee's, not the insurer's.
(g) Since the examiner is an employee of the
insurer, whose report may result in denial of benefits to the examinee, the
examination is adversarial, and the examinee is entitled to at least as much
protection as in a deposition.
(h) It is difficult for other experts and
fact-finders to judge the evidentiary weight to be given to an adversarial
medical examination without some indication of its thoroughness and
methodology.
(i) Because of the
deference normally given to the licensed professional examiner, it is very
difficult for the examinee to contest his findings before a fact-finding body,
absent some objective record of the examination.
(j) Videotaping is approved for oral
depositions, so as to pick up the occasional non-verbal
response, but is much more important for
the medical examination, where most of the responses are non-verbal, such as
range of motion, pain reactions, mobility, etc.
(k) Any potential inconvenience to the
examiner from having the observer use a video camera must yield to the public
policy of protecting the rights of the examinee.
(l) Therefore, examinees should routinely be
allowed to have an observer of their choice videotape their medical
examinations.
(m) Other states have allowed videotaping of
such medical examinations, e.g.:
SECTION 2.
Code
of Civil Procedure Section 2032.510 is amended to read:
(a) The attorney for the examinee or
for a party producing the examinee, or that attorney's representative, must be
permitted to attend and observe any physical examination conducted for
discovery purposes, and to record it stenographically,
by audiotape, and/or videotape. This observer may monitor the examination, but
shall not participate in or disrupt it.
(b) If an attorney's representative is
to serve as the observer, the representative shall be authorized to so act by a
writing subscribed by the attorney which identifies
the representative.
(c) If in the judgment of the observer
the examiner becomes abusive to the examinee or undertakes to engage in
unauthorized diagnostic tests and procedures, the observer may suspend it to
enable the party being examined or producing the examinee to make a motion for
a protective order.
(d) If the observer begins to
participate in or disrupt the examination, the person conducting the physical
examination may suspend the examination to enable the party at whose instance
it is being conducted to move for a protective order.
(e) The court shall impose a monetary
sanction under Section 2023.010 against any party, person, or attorney who
unsuccessfully makes or opposes a motion for a protective order, unless it
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.
(f) The party requiring the medical
examination may request a copy of the videotape from examinee or examinee's
counsel, upon payment of half the cost of the videographer,
equipment, and supplies.
SECTION 3.
Business
and Professions Code Section 811 is added to read:
811.
Whenever a person is required by law or contract to undergo a physical or
mental examination, he may, at his own expense, be accompanied by an observer
of his choice, who may record the examination in any way, including audio or
video tape.