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No witnesses: Plaintiff denied third-party witness, recording of medical exam

Nick Hurston//September 18, 2023

Woman lying in hosital bed


No witnesses: Plaintiff denied third-party witness, recording of medical exam

Nick Hurston//September 18, 2023

A personal injury plaintiff failed to satisfy the burden required to necessitate the recording of or having a third-party witness at her Rule 4:10 medical examination, a Fairfax County judge has held.

The plaintiff asked that her husband be allowed to observe the examination, but the defendant objected, saying her request was unfair and there were no extenuating circumstances necessitating a biased third-party witness.

Judge David A. Oblon noted that “[p]arties raise this issue so commonly that it is surprising Virginia circuit courts rule so inconsistently on the question and that no appellate authority exists to directly guide a trial court on how to rule.”

He added that “modern personal injury litigation practice somehow sharply deviated from the intent of Rule 4:10” as interpreted by the Supreme Court of Virginia.

“Generally, no party-selected third-party may observe a Rule 4:10 medical examination, and no party may record the examination, over the objection of the other party,” Oblon wrote. “Nothing proffered in the present case presents the rare exception to this general rule to permit observers and recordings for an accurate examination or for the health of Plaintiff.”

The opinion from the Fairfax County Circuit Court is Van Buskirk v. O’Meara (VLW 023-8-052).

Van Buskirk retained Fairfax litigator David Marks when the attorney who initially filed her case retired. Marks learned that his client didn’t have a “pleasant experience” with the defense’s doctor before he nonsuited and refiled her complaint.

He believed nothing during the first exam warranted their objection to another.

“Defense counsel wanted their doctor to update her condition, so we asked if her husband could accompany her,” Marks told Virginia Lawyers Weekly. “We’re not trying to set a precedent here. We just wanted this 71-year-old woman to have her husband to hold her hand during the examination.”

Although Marks was surprised by the defense’s objection, he said the judge did a good job based on what was available to him.

The case heads to trial on Sept. 26.

Request for a witness

In her complaint, Rosa Lynne Van Buskirk alleged that Daniel O’Meara negligently backed his vehicle into hers and injured her neck, throat, back and left hip. Van Buskirk’s husband, Raymond, was also injured and sued O’Meara separately.

When O’Meara asked for a medical examination of Van Buskirk under Supreme Court Rule 4:10, she didn’t object. But O’Meara objected to Van Buskirk’s desire for Raymond to silently observe the examination.

Van Buskirk said an examination of her hips and pelvis by a strange doctor employed by the defense placed her in a vulnerable situation. Since Raymond could witness her own doctor’s exam, she didn’t believe Rule 4:10 should be different.

As for her husband’s potential bias, Van Buskirk pointed out that Raymond would be subject to cross examination.

O’Meara said that Van Buskirk is an adult and there were no extenuating circumstances necessitating a witness to the medical examination.

He also argued that Raymond wasn’t a medical professional, was biased due to his own claims and that the Rule on Witnesses would preclude him from sitting in on discovery proceedings, including this pretrial medical examination.

‘Little consistency’

Virginia’s appellate courts haven’t expressed a rule or test to guide a trial court on whether to permit observers at a Rule 4:10 examination, Oblon noted. Of the stack of circuit court orders cited by the parties, he found little consistency.

“The Circuit Court of Fairfax, alone, entered four orders denying observers and three orders permitting them,” Oblon said. “In the absence of direct, controlling legal authority — or even much local persuasive authority, the Court first looked to courts who considered the issue from other jurisdictions.”

Most federal courts neither permit an attorney to observe their client’s examination nor allow unobtrusive recordings by the examinee.

“However, some federal courts have found there are ‘exceptional’ cases in which an observer may be allowed to attend a Rule 35 [the federal version of Rule 4:10] medical examination,” Oblon said.

Such circumstances include fear that the examiner will improperly perform the examination to seek damaging concessions and if an examinee needs emotional support or comfort.

But “the mere existence of one or more of these factors is not, by itself dispositive of whether an observer or recording device is appropriate in a particular case,” Oblon cautioned. “Even where legitimate concerns exist, many courts have emphasized that there are ‘other, less drastic means of addressing them.’”

‘Modern procedure’

“If parties followed the Rule [4.10] as the Supreme Court of Virginia interprets it, much of a plaintiff’s concern regarding a biased examiner would be alleviated,” Oblon said.

“Presumably, Plaintiff is satisfied with the doctor selected by Defendant. Otherwise, she would not agree to his selection. Therefore, a witness is unnecessary to provide her comfort that the examination will be proper.”

— Judge David A. Oblon, Fairfax County Circuit Court

He cited 1957’s Virginia Linen Service, Inc. v. Allen to point out that “[c]ontrary to modern practice, the defendant does not select the Rule 4:10 examiner; the Court makes the selection.”

For instance, a court may investigate and choose from a list of doctors recommended by counsel and paid for by the moving party, the judge noted.

“Because modern litigants do not follow Virginia Linen procedure and accept it as given that the examining doctor will be selected by the defendant, plaintiffs make requests like Plaintiff in the present case does to offset the disadvantage of being examined by a doctor perceived to be partisan,” Oblon pointed out.

The judge found reasonable 2011’s Thorpe v. Poore, where the Hanover Circuit Court permitted an observer and videographer after finding the Rule 4:10 examination was adversarial because the defendant unilaterally chose the doctor.

No unusual circumstances

Van Buskirk had the burden of proving that, under her specific facts and circumstances, the third-party was needed, or the facts of this case and examination were so unique that she was especially vulnerable and needed extra protection.

Oblon found that she failed to satisfy that burden.

“Presumably, Plaintiff is satisfied with the doctor selected by Defendant. Otherwise, she would not agree to his selection,” the judge wrote. “Therefore, a witness is unnecessary to provide her comfort that the examination will be proper.”

In dismissing Van Buskirk’s personal comfort concerns, Oblon said it was common for doctors to examine patients alone, people were more candid with a doctor without a spouse present and a third-party may ruin the examination.

Here, there were no unusual circumstances to consider for an exemption to the general rule that third parties or recordings are banned from Rule 4:10 examinations.

“Considering the Court’s reexamination of modern personal injury discovery practice per Virginia Linen, Plaintiff has leave to change her mind on the acceptability of [defendant’s doctor] and request that the Court select the examining physician pursuant to a procedure consistent with Virginia Linen,” Oblon concluded.

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