Oklahoma’s physical and mental examination statute, 12 O.S. § 3235, does not create an “independent” medical exam. It is a Defense Medical Examination (DME) conducted by a doctor retained by the opposing party. Oklahoma courts hold that a claimant’s representative may attend and videotape the entire exam under Section 3235(D).
Terminology: Defense Medical Examination, Not IME
Oklahoma’s physical and mental examination statute, 12 O.S. § 3235, never uses the word “independent.” The examining doctor is retained and paid by the opposing party to serve the defense, so nothing about the exam is independent. Calling it an “independent medical” exam, or “IME,” in letters, pleadings, or in front of a jury reinforces a false premise. Use “DME,” Defense Medical Examination, in your file and your client materials from the first notice forward.
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 state time, place, manner, conditions, scope, and the examining person. Minimum 5-day notice; none permitted until 30 days after service of summons and petition. The objecting party bears the burden on a protective order. |
| § 3235(D) | Representative Presence | A representative of the person to be examined may be present. This is the statutory basis for sending a paralegal, videographer, or attorney to the exam. |
| § 3235(E) | Report and Exclusion Remedy | On request, the party who caused the exam must deliver a detailed written report of findings, test results, and conclusions, plus reports of earlier exams 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 right. McCullough v. Mathews, 1995 OK 90, 918 P.2d 25, held that an attorney may serve as the representative and that audio recording is permitted. Boswell v. Schultz, 2007 OK 94, 167 P.3d 390, extended that right to videotaping. The Legislature recodified § 3235 in 2001 without changing the representative-presence language, 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 took 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 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 for opposing a motion to preclude:
- Video is “a superior method of providing an impartial record of the physical examination” compared to audio alone
- Videotaping gives the party “reliable proof that the examiner is unbiased and not merely a shill for the opposing party”
- A defense doctor’s privacy concerns are managed by agreement or court order, not by prohibiting videotaping altogether; the Court cited St. Clair v. Hatch, 2002 OK 101, 62 P.3d 382, for the principle that § 3235 protects the examined party
Defense counsel continues to file motions to preclude videotaping. Be ready to answer 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) | Time, place, manner, conditions, scope, and examiner must be specified; 5-day minimum notice; none before day 30 post-service. Object promptly if any element is missing. |
| 2 | Confirm the condition is in controversy | § 3235(A) limits the exam to conditions that are elements of the claim or defense. Challenge requests reaching beyond the pleaded conditions. |
| 3 | Decide whether to videotape | Video is the default. See the decision framework below. |
| 4 | Arrange a representative | Send a paralegal or videographer, not the attorney of record. See below. |
| 5 | Send pre-exam letters | One to the examining doctor, one to defense counsel, before the exam date. |
| 6 | Prepare your client | Supplement the standard appointment letter with a direct conversation about rights and restrictions. |
Phase 2: Pre-Exam Letters
Send two letters before the exam date and copy defense counsel and the adjuster on both.
To the examining doctor (certified mail): notify the doctor that the exam proceeds under § 3235, that the statute requires a detailed written report of findings, and that failure to produce the report may result in exclusion of the doctor’s testimony under § 3235(E)(3). This puts the report obligation on record before the exam. Some defense doctors withdraw rather than proceed under these conditions, which is not a loss for your client.
To defense counsel: notify counsel in writing that a representative will attend and videotape the entire exam, that your client will not sign intake forms at the appointment, and that your client will not proceed if videotaping is refused. This eliminates any claim of surprise later. Defense counsel who know the exam will be recorded sometimes withdraw the request before the exam date.
Phase 3: The Examination
| Issue | Your Position | Authority |
|---|---|---|
| Recording start time | Begin recording when your client enters the facility; capture waiting time, staff interactions, and the full exam | Boswell; § 3235(D) |
| Intake forms | Client signs nothing; the examiner already has the medical records | Pre-exam letter established this parameter |
| Interview scope | Client answers about current symptoms and limitations; no discussion of accident causation, fault, or prior litigation history beyond what bears on the condition | § 3235(A): exam limited to conditions in controversy; a DME is not the same as a car accident deposition |
| HIPAA objections | Compliance is the examiner’s obligation; § 3235(D) rights do not depend on the exam room’s camera setup | § 3235(D); Boswell |
| Refusal to allow video | Document the refusal on video, do not proceed, notify defense counsel in writing, and seek court intervention if necessary | § 3235(B); Boswell |
Phase 4: Post-Exam Report Demand
Send the § 3235(E) report demand by certified mail immediately after the examination, requesting a detailed written report of all findings, results of all tests, diagnoses and conclusions, and reports of prior examinations of the same condition. If the doctor fails to produce the report after your demand, § 3235(E)(3) gives you an exclusion remedy: the court “may, and on request shall, exclude any evidence concerning the examination” if the party who caused the exam calls the examiner to testify. Send the demand the day of or the day after the exam and calendar your follow-up; a well-organized records request checklist keeps this and related deadlines from slipping.
For abusive examination conduct, 12 O.S. § 3230(E) may support a motion to terminate or limit the exam. Its text applies to depositions, 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 examiner with a pattern of cursory exams | High: documents the gap between exam time and the weight the opinion will receive at trial | Video |
| Unknown examiner, first DME on the case | High: builds a complete record, including wait time and staff interactions | Video |
Start recording when your client enters the facility, not just when the doctor arrives. A five-minute exam after an hour in the waiting room is an argument the video makes for you at trial.
Who to Send: Paralegal, Not the Attorney of Record
§ 3235(D) authorizes a “representative,” not specifically an attorney. McCullough confirmed an attorney may serve in that role, but confirmed authorization is not the same as good strategy: if you attend, you become a potential fact witness. Defense counsel can subpoena you to testify about what you observed, seek your notes, and seek your file on the exam, 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 representative. Brief them on what to capture and how to document refusals, and have them write a memo immediately after the exam while it is fresh.
HIPAA and the Videotaping Objection
Defense doctors sometimes instruct staff to invoke HIPAA against videotaping: other patients might appear on screen, or the exam method might be captured. HIPAA’s Privacy Rule governs how a covered entity such as the examiner’s practice handles protected health information; it gives the examiner no right to override your client’s § 3235(D) and Boswell rights. If recording could expose other patients, the fix is restructuring the exam environment, not denying your client’s statutory rights.
A related tactic: some doctors demand a video consent or release form before proceeding. That has no statutory support. § 3235(D) does not condition representative presence on any release. Object to the demand in your pre-exam letter and hold that position at the exam.
Client Preparation
The standard appointment letter confirms the appointment; it is not a preparation guide. Before the exam, cover the following directly with your client.
| Topic | Instructions to Client |
|---|---|
| Paperwork at the exam | Do not sign or complete intake forms, questionnaires, or releases. If staff insist, say your attorney instructed you not to sign and that you will not proceed if signing is required. |
| The representative’s role | You will be accompanied by a firm representative who observes and records; they will not speak during the exam or intervene in questions. |
| Symptoms and condition | Answer honestly about current symptoms and how the injury affects daily life. Do not exaggerate. |
| The accident itself | This doctor is not your treating physician. Do not discuss how the accident happened, fault, or what you told other doctors unless directly asked about your current condition. |
| Prior injuries | Answer honestly if asked directly. Do not volunteer history that was not requested. |
| Demeanor | Be polite and cooperative. 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. Discuss the exam only with your attorney, and keep notes on what happened, how long you waited, and what the doctor did and said. |
If your client refuses to sign intake forms and the doctor refuses to proceed as a result, document the circumstances in a contemporaneous memo before they fade; that memo is your defense to a motion to compel. Hasbrook & Hasbrook updates this personal injury litigation protocol as Oklahoma DME case law develops.
