Boswell v. Schultz, 104,840.

• Decision Date: 04 December 2007
• Docket Number: No. 104,840.,104,840.
• Parties: Cody Harrison BOSWELL and, Cheryl Boswell, Petitioners, v. Kandee SCHULTZ, Respondent, and Vicki L. Robertson, Judge of the District Court, real party in interest.
• Court: Oklahoma Supreme Court

175 P.3d 390

2007 OK 94

Cody Harrison BOSWELL and, Cheryl Boswell, Petitioners, v. Kandee SCHULTZ, Respondent, and Vicki L. Robertson, Judge of the District Court, real party in interest.

No. 104,840.

Supreme Court of Oklahoma.

December 4, 2007.

Application to Assume Original Jurisdiction and Petition for Writ of Mandamus and Writ of Prohibition; Honorable Vicki L. Robertson, Trial Judge.

¶ 0 The petitioners, Cody and Cheryl Boswell, filed a lawsuit against the respondent Kandee Schultz, seeking to recover damages for personal injuries sustained from an automobile accident. The respondent requested that the petitioners undergo medical examinations pursuant to 12 O.S.2001 § 3235. The petitioner, Cody Boswell, appeared for his medical examination with his attorney who began videotaping as soon as they entered the doctor's office. The doctor refused to proceed with the examination unless the attorney agreed to stop videotaping. Because the parties were unable to agree whether to allow the videotaping, the examination did not take place. The respondent filed a Motion to Compel, requesting the trial court order the petitioners submit to the examination because they had no legal basis to demand to videotape the examination. The trial court granted the respondent's motion and the petitioners filed an application to assume original jurisdiction in this Court. We hold that 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.

ORIGINAL JURISDICTION ASSUMED; WRITS GRANTED.

Howard Israel, Oklahoma City, OK, for Petitioners.

KAUGER, J.

¶ 1 The issue presented is whether a party to a lawsuit who is required to undergo a medical examination pursuant to 12 O.S.2001 § 3235¹ may videotape his or her examination. We hold that he or she may. Therefore, we assume original jurisdiction and grant the writ of prohibition and writ of mandamus.

FACTS

¶ 2 On July 28, 2006, the petitioners, Cody and Cheryl Boswell, filed a lawsuit against the respondent, Kandee Schultz, seeking to recover damages for personal injuries sustained from an automobile accident. As part of the pretrial discovery process, the respondent sought to have the petitioners undergo medical examinations by a doctor of respondent's choice pursuant to 12 O.S.2001 § 3235.²

¶ 3 The respondent chose Dr. Winzenread (doctor) to examine the petitioners. On May 24, 2007, the petitioner, Cody Boswell, showed up for his examination with his lawyer, who brought along a video camera. The attorney began videotaping as soon as he entered the doctor's office, but was asked to stop by the doctor's receptionist. Apparently the doctor's policy was not to allow videotaping because it was: 1) an invasion of the privacy of the other patients in the office; 2) annoying and distracting to the doctor; and 3) intrusive and an interference with the doctor's examination. The petitioners refute the doctor's excuses, pointing out in the response to the motion to compel that the reason given at the time was that "unless the attorney who actually had — has the case scheduled and is paying for the exam — um — unless that attorney gives us permission or gives someone permission to videotape at the time, then it is not done."

¶ 4 Because the parties were unable to agree whether to allow the videotaping, the examination did not take place. The doctor also indicated that an examination of the other petitioner, Cheryl Boswell, would not take place either. On May 25, 2007, the respondent filed a Motion to Compel, requesting that the trial court order the petitioners submit to the examination because they had no legal basis to demand to videotape the examinations. The respondent also sought attorney's fees and costs incurred in filing the motion and cancelling the doctor's appointments. On July 5, 2007, the trial court granted the respondent's motion to compel. On July 11, 2007, the petitioners filed an application to assume original jurisdiction in this Court.

¶ 5 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.

¶ 6 The respondent argues that there is no legal basis to support the petitioners' demand to video the examination. The petitioners counter that: 1) 12 O.S.2001 § 3235³ does not prohibit a person who is required to undergo a medical examination from videotaping the examination; and 2) the person being examined has a right to demand videotaping because it would have probative value and provide reliable proof if a doctor were biased and merely acting as a partisan for the opposing party.

¶ 7 In the nineteenth century, the United States Supreme Court in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) expressed the common law view that court-ordered medical examinations were repugnant to a person's privacy and bodily integrity.⁴ However, over time and by at least the 1960's this view was no longer valid and this Court began to allow medical examinations of plaintiffs in personal injury suits recognizing that: 1) the object of all court litigation was, as far as possible, to arrive at the truth and administer justice; and 2) when persons appeal to the courts for justice, they are impliedly agreeing to make any disclosures which are necessary to be made in order that justice may be done.⁵ In other words, just as a plaintiff may be entitled to redress for an injury caused by a defendant, the defendant is entitled to verify the existence and extent of the injury.

¶ 8 Title 12 O.S.2001 § 3235⁶ was apparently born out of this controversy, because it statutorily sets forth the procedures for obtaining through discovery physical and mental examinations of parties to a lawsuit. Subsections (A) and (B) govern when the party's physical condition is an element of that party's claim or defense,⁷ while subsection (C) governs when the party's physical condition is not an element of that party's claim or defense.⁸ When a party's physical condition is in controversy and is relied upon as an element of that party's claim or defense, as it is in the instant cause, an adverse party "may take" a physical examination of the party.⁹ A representative of the party to be examined is expressly authorized to be present at the examination.¹⁰ After the examination, a detailed written report of the examiner setting out the findings, results, diagnoses, and conclusions is required.¹¹

¶ 9 The Legislature, in § 3235(B), authorized a party to request conditions for the medical examination and allowed the trial court to impose conditions regarding the examination, but did not specify precisely what "conditions" are to be allowed.¹² In McCullough v. Mathews, 1995 OK 90, ¶¶ 1-2, 918 P.2d 25, the Court assumed original jurisdiction to determine whether anything or anyone other than the party being examined and the physician doing the examining, should be allowed in the examination room.

¶ 10 McCullough, construing § 3235(D), recognized that the statute expressly authorizes the person being examined to bring a third party representative to the examination; and that the statute was without restriction as to who could serve as a third party representative — an attorney or anyone else. Consequently, the Court held that an attorney was entitled to serve as a third party representative under the statute.

¶ 11 In McCullough, the trial court, as part of the conditions of the examination, had authorized that handwritten notes could be taken during the examination. We determined that the trial judge did not abuse his discretion in allowing handwritten notes to be taken, but we also recognized that an audio recording of the examination should be allowed. McCullough did not state the reason or purpose for allowing an audio recording; but in St. Clair v. Hatch, 2002 OK 101, ¶ 5, 62 P.3d 382, we noted that when the party to be examined is relying upon a condition that is an element of that party's claim or defense, § 3235 favors the rights of the party seeking the examination to fully investigate and prepare its case, to ascertain whether the plaintiff actually has the injuries which are alleged to have been caused by a defendant.

¶ 12 However, the purpose of the statute is twofold. 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.

¶ 13 Unless a contrary intent clearly appears, if a statute previously construed by courts of last resort is reenacted in the same or substantially the same terms, the Legislature is presumed to have been familiar with its construction, and to have adopted such construction as an integral part of the statute.¹³ After our ruling in McCullough, supra, the statute was recodified in 2001 without any changes. The Legislature did not override our construction of that statute and audio recording was approved as an authorized device allowed in the examination. A video recording would be a superior method of providing an impartial record of the physical examination.

¶ 14 The purpose of modern discovery practice and procedure is to promote the discovery of the true facts and circumstances of the controversy, rather than to aid in their concealment.¹⁴ In State ex rel. Remington Arms Co., Inc. v. Powers, 1976 OK 103, ¶ 4, 552 P.2d 1150,¹⁵ the Court recognized that rules and statutory enactments dealing with discovery are to be given liberal construction,¹⁶ stating:

The purposes of the discovery statute are to facilitate and simplify identification of the issues by limiting the matters in controversy,...