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Arizona Court of Appeals clarifies Rule 35 and the limits of recording an independent medical exam.

The Arizona Court of Appeals recently decided the limits a court may and may not place on recording an independent medical examination under Rule 35.  This decision has implications for a wide range of personal injury cases.

In Clayton v. Hon. Kenworthy et al, the plaintiff, a six-year-old with significant disabilities including hearing loss and cerebral palsy, through his mother, filed a medical malpractice action alleging they were negligent in delivering him at birth.  The defendants requested a Rule 35 neurospych exam to determine his current and future cognitive abilities.  The mother agreed to the examination on the condition that she be present to observe the exam via one-way glass or alternatively, be allowed to video-record the exam.  The defendants objected and supported their objection with a declaration of the chosen neuropsychologist and medical literature indicating a recording or third-party observer would jeopardize the integrity of the exam.  The superior court accepted that evidence and denied both the request to observe and the request to record.  The mother petitioned for special action relief, only from the order prohibiting the recording.

Briefly, Arizona Rule of Civil Procedure 35(a)(1) allows a court, upon motion for good cause, to order a physical or mental examination of a party “whose physical or mental condition is in controversy.”  Rule 35(c)(1) provides that the person being examined has the right to have a representative present “[u]nless his or her presence may adversely affect the examination’s outcome.”  And regardless whether a representative is present, Rule 35(c)(2)(A) gives any party the right to audio-record or video-record the examination. If a party shows that the recording “may adversely affect the examination’s outcome, the court may limit the recording, using the least restrictive means possible.”

The Court held that the plain language of Rule 35(c)(2)(A) creates an absolute right to have the examination recorded, and provides the superior court discretion only to limit the recording, not prohibit it.  The Court accepted jurisdiction, granted relief, and remanded for the superior court to determine the least restrictive means for the recording of the examination to occur.