Privacy Please: The Case Against Recorded Medical and Vocational Examinations 

By: Katherine E. Cortesy, Baker Sterchi Cowden & Rice LLC

“We intend to have [plaintiff] audio record the session so that there can be no dispute as to what is said. Are we going to litigate that or will you stipulate to that?” 

The email came in response to a request for a psychological evaluation. Plaintiff’s counsel was willing to have her attend the session, so long as she could audio record it. The plaintiff claimed she had severe PTSD, depression, and anxiety because of the subject incident, and plaintiff’s psychologist produced a report stating that she was severely traumatized and would require psychological treatment in the future. To investigate these claims, the defense retained a neuropsychologist to conduct an independent psychological evaluation, which her attorney wanted to have recorded. I did not agree, and we litigated it. 

Demands to let a plaintiff record psychological, vocational, and medical examinations are common. From a defense perspective, there are few, if any, reasons to agree to a recording, especially for a psychological or vocational exam. If the parties do not agree on the conditions and scope of an examination, judges have broad discretion to set the parameters.[1] Part of this discretion includes whether the examination will be recorded, but unfortunately, there is very little guidance in Wisconsin caselaw on this issue. Decisions by the circuit courts are trending towards allowing recordings,[2] but the defense bar still has an opportunity to push back, and when faced with a demand to record an evaluation, should argue against it.

I.              The Law in Wisconsin

Wisconsin cases focus primarily on counsel being physically present at examinations. In Whanger v. Am. Family Mut. Ins. Co., the plaintiff alleged he suffered a heart condition as a result of a motor vehicle accident.[3] The court made an oral ruling that plaintiff would cooperate with a medical examination. The attorney for the defendants was instructed to draft a written order, but the judge signed an order drafted by plaintiff’s counsel that included a provision that an attorney would be present at the examination. The defense appealed only the part of the order that allowed plaintiff’s counsel to be present at the examination. 

At the time, the Court was interpreting a slightly different version of the statute on independent examinations,[4] but, like today, the trial court had broad discretion to order an examination and determine the details of said examination, including the presence of counsel.[5] The Court noted that, generally, opposing counsel’s presence is not necessary and adds nothing to the adequacy of the examination.[6] However, there may be certain situations where having counsel at the examination is helpful.[7] This includes when the character, personality, or sophistication of the claimant requires the attorney to assist with communication, if there is hostility between the examiner and claimant, or the claimant is particularly fearful or reluctant.[8] The case was remanded to the trial court for a determination of whether counsel needed to observe the examination in this case, based on the considerations listed above.

In Karl v. Emp’rs Ins. of Wausau, the plaintiff submitted to a psychological evaluation with a defense psychiatrist.[9] Unknown to defense counsel, her attorney accompanied her to the evaluation.[10] On appeal, the defense argued that plaintiff’s counsel should have been barred from cross-examining the expert on the portions of the evaluation that he observed.[11] Applying Whanger, the court commented that counsel should not attend an examination unless the court has determined otherwise but ultimately found that the plaintiff exhibited fear behaviors and the trial court would have been justified in allowing her attorney to accompany her.[12]

In Stone v. Am. Family Mut. Ins. Co., an unpublished opinion, the court of appeals affirmed a trial court’s decision to not allow a third-party observer or recording.[13] Plaintiff sought to have her attorney at medical and vocational examinations, or in the alternative, record the sessions.[14] She argued it was necessary to alleviate her anxiety about the examinations and because her chiropractor spoke unfavorably about the agency conducting the examinations.[15] The appellate court found that these non-specific arguments and critiques did not meet the Whanger burden. The Court also commented that plaintiff could discuss the examinations with her attorney, the examiners would produce a written report of their findings, and counsel could further investigate the methods and conclusions via deposition and cross-examination.[16]

II.            The Arguments Against Recording Independent Medical, Vocational, and Psychological Examinations

Now, the more common request is for a recording of the meeting, versus having counsel present. By requesting recordings, plaintiffs attempt to circumvent the factors set forth in Whanger and monitor the session without any showing of a specific need. This should not become the norm.

a.     Recording Compromises the Integrity of the Examination

The goal of these examinations is to allow the defense an equal opportunity to assess and evaluate claimed injuries, whether mental, physical, or vocational. This requires a spontaneous, forthcoming, and honest conversation between the examiner and examinee. The methodology of the examination and ultimate conclusions are compromised if the participants are not fully engaged. The presence of a recording device, no matter how small or unobtrusive, threatens this necessary candor. Even unintentionally or subconsciously, individuals being recorded will change behaviors and responses. This can result in self-censorship, increased anxiety and discomfort, or performance bias, where the individual will exaggerate strengths and downplay weaknesses because they are aware they are being observed or that the recording will be listened to later.

Other courts have recognized the need for an unimpeded private exchange between the examiner and examinee. When deciding the issue of allowing recording under Fed. R. Civ. P. 35, the equivalent of Wis. Stat. § 804.10(1), courts have commented that recording constitutes an intrusion into the evaluative process,[17] lends a degree of artificiality that is inconsistent with professional standards,[18] and impedes the one-on-one communication between the examiner and examinee.[19] To maintain the authenticity of the independent medical or vocational examination, it is important to remove all encumbrances which may, even subconsciously, cause participants to adjust their behaviors.

b.    Recording Creates Partisanship in Something That is Not Inherently Adversarial

The mere act of an expert examining or evaluating a plaintiff is not inherently adverse, and all parties have an interest in divesting as much adversarial character from the examination as possible. A non-adversarial interaction leads to a better experience for both the plaintiff and the expert and produces more accurate results, which should be the goal for both sides. The Whanger court characterized these exams as part of investigation and trial preparation, not an adversarial proceeding.[20] This theme persists in other courts, who have extended this principle past the presence of counsel and included audio recordings as something that unnecessarily injects adversity into the interaction.[21] 

Yes, the defense selects and retains the experts that will conduct independent examinations. However, there is no other avenue for the defense to assess a plaintiff’s claimed injuries. A plaintiff may place their health and vocational capability in controversy and support these claims with the opinions of treating providers The defense has no other option besides retaining a third party. 

Further, independent medical and vocational exams are just that: independent. An expert is not retained to act as an advocate for the defense or arrive at a pre-determined conclusion that aids one side or another. All possible precautions should be taken to ensure the examination or evaluation remains as neutral as possible. This includes removing any attorney oversight from the examination room.

c.     Adequate Safeguards Exist to Resolve Any Disputes About What Occurred in an Examination

Opposing counsel in the above example requested a recording so there could be “no dispute” about what happened in the evaluation. While this is a prime example of plaintiffs seeking to monitor a session without showing a specific need, the concern about dishonesty is also grossly misplaced. Unrecorded independent medical examinations do not occur in a black hole. There are means by which plaintiff and defense counsel can understand what was discussed in the examination without needing to monitor the entire exchange. The court in Stone offered a few examples.[22] Individuals can take written notes and discuss the examination with counsel after it has been concluded. The expert produces a written report summarizing the exam and the findings. The expert may also testify under oath at deposition or trial about the methods that were used, impressions from the examination, and the overall conclusions.

Additionally, the retained experts are knowledgeable within their respective fields and often have prior experience with legal cases. Examiners are capable of performing evaluations and distilling findings into comprehensive reports. To suggest that an expert may lie or commit egregious errors is an unfounded concern in most, if not all, instances. Any potential disagreement about the contents of the examination or the conclusions drawn from it can be addressed via the defense expert’s testimony, the plaintiff’s testimony, and testimony from the plaintiff’s expert. It is up to the jury, in fact it is their explicit role, to weigh the credibility of each of these witnesses and determine the truth. They can do this without an audio recording.

d.    Recording Only Defense Examinations is Contrary to Principles of Fairness

Finally, and perhaps most importantly, it is unfair to only record conversations with defense experts. If plaintiff’s expert is a treating provider, conversations likely occurred as part of appointments, sometimes before a lawsuit was even filed. If the expert has been retained specifically for the case, the plaintiff often meets with the expert before the defense is made aware of the expert’s identity. There is no option for the defense to request a recording of the interaction. Thus, the defense relies on any notes taken, reports produced, and testimony given to understand the examination and the expert’s opinions. The information available to the defense is identical to the information available to plaintiffs when an examination is not recorded.

The goal of an independent medical or vocational examination is to put both parties on equal footing when evaluating a plaintiff’s claimed injuries. The idea of giving each party equal opportunity to assess the plaintiff goes beyond simply allowing the examination. Plaintiff’s experts are allowed to assess the plaintiff unencumbered by oversight from counsel, and the defense experts should be given the same opportunity. Additionally, each party is better placed on equal footing if neither receives the benefit of a recorded examination. The same safeguards discussed above that the plaintiffs can rely on in the absence of a recording are the same safeguards that the defense must necessarily rely on. Plaintiffs do not suffer any disadvantage by not having a recording of defense examinations and if conversations with plaintiff’s experts are candid and uninvaded, then fairness requires conversations with defense experts to be equally uninvaded. 

Ultimately, there is no absolute right for a party to be present at an independent examination or to have the exam recorded. Without a showing of a specific need, as was contemplated in Whanger, these examinations should be done with complete privacy between the examiner and the plaintiff. Any argument that recording promotes truth in fact-finding is contradicted, as recordings undermine the independent nature of the examination and potentially compromise the outcome. Defendants should not agree to plaintiff recording an examination and, when the issue arises, should litigate it. 

Author Biography:

Katherine E. Cortesy is an attorney with Baker Sterchi Cowden & Rice, LLC in Madison, Wisconsin. She focuses her practice on insurance defense litigation with an emphasis on personal injury, products liability, and medical malpractice.