A suggested draft


Health Administration Responsibility Project, Inc.

Harvey S. Frey MD, PhD, Esq., Director

(310) 394-6342

A Bill to:

     amend Code of Civil Procedure Section 2032.510

     add Business and Professions Code Section 811




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.: New York, as established at 12 NYCRR 300-2.3.



     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.







     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.