Terminology: Defense Medical Examination, Not IME
Oklahoma’s physical and mental examination statute, 12 O.S. § 3235, contains no reference to an “independent” medical examination. The examination is conducted by a physician retained by the adverse party to serve the defense. Nothing about it is independent. Using “IME” in correspondence, pleadings, and especially in front of a jury reinforces the false premise that the examiner is neutral. Use “DME” (Defense Medical Examination) throughout your file, your letters, and your client preparation materials.
Statutory Framework: 12 O.S. § 3235
| Subsection | Subject | Operative Rule |
|---|---|---|
| § 3235(A) | Scope | Examination is available when a party’s physical or mental condition is “in controversy” as an element of a claim or defense against that party |
| § 3235(B) | Procedure and Timing | Notice must specify time, place, manner, conditions, scope, and the examining person; minimum 5-day notice required; no notice permitted until 30 days after service of summons and petition; burden of proof is on the party objecting or seeking a protective order |
| § 3235(D) | Representative Presence | “A representative of the person to be examined may be present at the examination.” This is the statutory basis for sending a paralegal, videographer, or attorney to the exam |
| § 3235(E) | Report Requirement and Exclusion Remedy | On request, the party causing the examination must deliver a detailed written report of findings, all test results, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition; failure to produce the report after demand triggers an exclusion remedy at trial |
The Oklahoma Supreme Court has twice expanded the § 3235(D) representative presence right. In McCullough v. Mathews, 1995 OK 90, 918 P.2d 25, the Court held that an attorney may serve as the representative and that audio recording is permitted. In Boswell v. Schultz, 2007 OK 94, 167 P.3d 390, the Court extended that right to videotaping. The Legislature recodified § 3235 in 2001 without modifying the representative presence language, thereby adopting the McCullough construction.
Boswell v. Schultz: The Right to Videotape
In Boswell v. Schultz, 2007 OK 94, 167 P.3d 390, the Oklahoma Supreme Court assumed original jurisdiction after a trial court ordered the petitioners to submit to a § 3235 examination without their video camera. The examining doctor’s office had stopped the recording, citing patient privacy, distraction, and intrusiveness. The Court granted both a writ of prohibition and a writ of mandamus, and held:
“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.”
The Court’s reasoning is the ammunition you need when opposing a motion to preclude:
- Video provides “a superior method of providing an impartial record of the physical examination” compared to audio alone
- Videotaping allows the party to have “reliable proof that the examiner is unbiased and not merely a shill for the opposing party”
- “A defense-selected physician should not have the right to dictate all the terms under which a plaintiff’s examination will be held”
- The doctor’s privacy concerns (other patients, distraction, intrusiveness) are manageable by agreement or court order; they are not grounds to prohibit videotaping altogether
- The Court cited St. Clair v. Hatch, 2002 OK 101, 62 P.3d 382, for the principle that § 3235 protects the rights of the party being examined
Defense counsel continues to file motions to preclude videotaping in the years since Boswell. Be ready to respond with the opinion text directly.
Protocol: From Notice Received Through Post-Exam Report
Phase 1: When the DME Notice Arrives
| Step | Action | Notes |
|---|---|---|
| 1 | Verify the notice meets § 3235(B) requirements | Notice must specify time, place, manner, conditions, scope, and the examining person; minimum 5-day notice required; no notice before day 30 post-service. Object promptly if any element is missing. |
| 2 | Confirm the condition at issue is in controversy | § 3235(A) limits the examination to conditions that are elements of the claim or defense against your client. Challenge requests that reach beyond the pleaded conditions or that seek examination of a condition your client has not placed at issue. |
| 3 | Decide whether to videotape | Analyze the specific examiner and your client’s presentation on camera. The default is video; see the decision framework below. |
| 4 | Arrange a representative (paralegal or videographer) | Do not attend personally. See attorney presence risk below. |
| 5 | Draft and send pre-exam letters | One to the examining doctor, one to defense counsel, before the exam date. See letter guidance below. |
| 6 | Prepare your client | Supplement the standard appointment notification with a direct preparation conversation or written memo. The appointment notification covers logistics; it does not cover rights and restrictions. |
Phase 2: Pre-Exam Letters
Send two letters before the exam date and CC defense counsel and the adjuster on both.
To the examining doctor (send by certified mail):
The letter should notify the doctor that your office has been advised they will be conducting a Defense Medical Examination of your client on the scheduled date, that the examination is being conducted pursuant to 12 O.S. § 3235, and that the statute requires the examiner to prepare a detailed written report of findings. Advise the doctor that failure to prepare and produce such a report may result in the court excluding their testimony at trial, pursuant to § 3235(E)(3).
This letter does two things: it establishes record notice of the report obligation before the exam, and it signals to the examiner that the examination will be conducted under statute, not on the doctor’s terms. Some defense doctors will withdraw rather than proceed under these conditions. That outcome is not a loss for your client.
To defense counsel:
Notify defense counsel in writing that a representative of your client will be present at the examination and will videotape the entire exam, including all interactions between the examiner or office staff and your client. Also notify defense counsel that your client will not be signing any intake forms, completing any questionnaires, or providing paperwork at the examination. State explicitly that your client will not proceed with the examination if videotaping is refused.
Sending this notice in advance eliminates any claim of surprise at the exam and creates the record you need if videotaping is refused on the day of the exam. Copying the adjuster is standard. Defense counsel who know the exam will be videotaped sometimes withdraw the DME request before the exam date.
Phase 3: The Examination
| Issue | Your Position | Authority |
|---|---|---|
| Recording start time | Begin recording the moment your client enters the exam facility; capture waiting time, staff interactions, and the full examination | Boswell v. Schultz, 2007 OK 94; § 3235(D) |
| Intake forms | Client does not sign or complete any paperwork; the examining doctor has the medical records already | § 3235(B) authorizes conditions to be set; your pre-exam letter established this parameter |
| Interview scope | Client answers questions about current symptoms and physical limitations; client does not discuss accident causation, fault, liability, or prior litigation history beyond what is directly relevant to the condition at issue | § 3235(A): examination limited to conditions in controversy; the DME is not a deposition |
| HIPAA objections from doctor or staff | HIPAA compliance is the examiner’s obligation; your client’s statutory rights under § 3235(D) are not contingent on the doctor having structured the exam room to accommodate a video camera | § 3235(D); Boswell (privacy concerns do not override the statutory right) |
| Refusal to allow videotaping | Document the refusal on video; do not proceed with the examination; notify defense counsel immediately in writing; seek court intervention under § 3235(B) if necessary | § 3235(B); Boswell |
Phase 4: Post-Exam Report Demand
Send the § 3235(E) report demand by certified mail immediately after the examination. The demand should request:
- A detailed written report of all findings
- Results of all tests conducted during the examination
- Diagnoses and conclusions
- Reports of all prior examinations of the same condition
The “prior examinations” language in § 3235(E) refers to “like reports of all earlier examinations of the same condition.” The plaintiff’s argument is that this includes the examiner’s reports from prior litigation involving the same condition in other cases. If a court adopts that reading, it becomes a powerful discovery tool, not just post-exam housekeeping. Make the demand and let defense counsel object.
If the examining doctor fails to produce the required report after your demand, you have an exclusion remedy at trial. Under § 3235(E)(3), if the party who caused the examination calls the examiner to testify, the court “may, and on request shall, exclude any evidence concerning the examination.” Your pre-exam letter to the doctor already put the examiner on notice. The post-exam demand letter creates the demand of record that triggers the exclusion remedy. Do not let this drift; send the demand the day of or the day after the exam, and calendar your follow-up.
For cases involving abusive examination conduct, 12 O.S. § 3230(E) may support a motion to terminate or limit the examination. The statute’s text applies to depositions (“unreasonably to annoy, embarrass or oppress the deponent or party”), but it is the closest available procedural mechanism for DME abuse, and courts would likely apply it by analogy. Preserve the record on video and bring the motion if warranted.
Videotaping: Decision Framework
| Scenario | Video Value | Recommendation |
|---|---|---|
| High-volume defense examiner with a pattern of cursory examinations | High: documents the disparity between exam time and the weight the examiner’s opinion will receive at trial; six minutes with a paperclip is a story the jury can follow | Video |
| Unknown examiner; first DME on the case | High: establishes a complete record; captures waiting time and all staff interactions | Video |
Start recording from the moment your client enters the facility, not just when the doctor arrives. Capturing the full wait time and any staff interactions is part of the record. If the video shows a five-minute examination following an hour in the waiting room, that contrast is the argument at trial.
Who to Send: Paralegal, Not the Attorney of Record
Section 3235(D) authorizes a “representative” of the person being examined, not specifically an attorney. McCullough confirmed that an attorney may serve in that role, but confirmed that authorization is not the same as a good strategy.
If you attend the DME, you become a potential fact witness. Defense counsel can subpoena you to testify about what you observed. They can seek your notes, your communications about the examination, and your file concerning the DME. That is not a hypothetical risk. An attorney who attends a DME in person may face a motion to disqualify or a subpoena for testimony about what they observed, forcing a choice between withdrawing from the case or litigating the subpoena.
Standard practice: send a trained paralegal or a professional legal videographer as the § 3235(D) representative. Brief them specifically on what to capture and how to document refusals. Have them provide you with a written memo immediately after the exam while the experience is fresh. You get the full record without creating witness exposure for yourself.
HIPAA and the Videotaping Objection
Defense doctors sometimes instruct staff to invoke HIPAA as grounds for refusing videotaping: other patients might appear on screen, or the doctor’s examination method might be captured. The response is straightforward: HIPAA compliance is the doctor’s obligation, not your client’s burden.
If the examination is conducted in a setting where recording could expose other patients’ information, the solution is for the doctor to restructure the examination environment, not to deny your client’s statutory rights under § 3235(D) and Boswell. Your client did not agree to waive their right to representative presence when the case was filed; that right is statutory and exists independently of any consent or agreement by the examining doctor.
The Boswell Court specifically addressed privacy objections and rejected them as insufficient to override the statutory right. If defense counsel files a motion to preclude citing HIPAA, respond with Boswell and note that the Court already considered and rejected this category of objection.
A related tactic: some examining doctors demand that your client sign a video consent or release form before the examination proceeds. That has no statutory support. Section 3235(D) does not condition representative presence on any release or consent. Object to this demand in your pre-exam letter and hold that position at the examination.
Client Preparation
The standard client appointment notification letter confirms the appointment and attendance obligation. It is not a preparation guide. Before the exam, communicate directly with your client about the following:
| Topic | Instructions to Client |
|---|---|
| Paperwork at the exam | Do not sign or complete any intake forms, questionnaires, or releases; if staff insist, tell them your attorney instructed you not to sign and that you will not be proceeding with the examination if signing is required |
| The representative’s role | You will be accompanied by [paralegal name or “a firm representative”] who is there to observe and record the examination; they will not speak during the examination or intervene in any questions |
| Questions about symptoms and condition | Answer honestly about current symptoms and how the injury affects daily life; do not exaggerate |
| Questions about the accident | The DME doctor is not your treating physician; do not discuss how the accident happened, fault, or what you told other doctors unless the doctor directly asks about your current physical condition |
| Prior injuries | Answer honestly if asked directly about prior injuries; do not volunteer history that has not been requested |
| Demeanor | Be polite and cooperative with the doctor and staff; do not argue; if videotaping is refused and the exam cannot proceed, leave calmly and call the office immediately |
| After the exam | Call the office the same day; do not discuss the examination with anyone other than your attorney; keep notes about what happened, how long you waited, and what the doctor did and said |
If your client refuses to sign intake forms and the examining doctor refuses to proceed as a result, document that in a contemporaneous memo before the circumstances fade. Defense counsel may use the refusal as the basis for a motion to compel. Your contemporaneous record of the circumstances and your client’s instructions is the defense to that motion.
Update your standard appointment notification letter to use “Defense Medical Examination” rather than “IME.” The terminology matters and should be consistent from the first client communication forward.
