We have written previously on the plethora of issues arising from both the covert and open recording of medical examinations. The most common situations where recording takes place are during examinations in the context of personal injury claims and at ATOS assessments.
In the context of a personal injury claim, if the Claimant has covertly recorded an examination by an expert instructed by the Defendant, the Defendant will inevitably object to the Claimant being allowed to rely upon the recording as evidence in their claim. Whether something can be relied upon in evidence is referred to by lawyers as the ‘admissibility of evidence’. Where the parties cannot agree on whether something is admissible, a judge will have to decide.
Mustard – v- Flower
This week, a procedural judge (called a ‘Master’) in the High Court has ruled on the admissibility in evidence of recordings of three medical examinations in one personal injury claim. The judge also took the opportunity to make more general observations and recommendations on this increasingly topical and often controversial issue.
In the case in question, Mustard – v- Flower, on the advice of her solicitor the Claimant had recorded her examinations with all three of the experts instructed by the Defendant. Two of those recordings were made covertly and, while the first part of the third examination was recorded openly, the next part was not. The Claimant did not record the examinations with the experts instructed by her own solicitors.
While describing the covertly obtained recordings as “reprehensible”, the judge, Master Davison, nevertheless ruled that they were admissible. Commenting more generally, the Master went on to say that:
“It is [in] the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an “industry-wide” agreed model which caters for the many issues capable of arising and, I might add, which pays careful attention to the containment of the costs that might potentially be generated.”
With that in mind, he suggested that claimant and defendant lawyers, represented respectively by the Association of Personal Injury Lawyers [APIL] and Forum of Insurance Lawyers [FOIL], work together on developing a protocol to govern the recording of examinations. Ultimately, this may well lead to the recording of medical examinations in personal injury claims becoming routine or even compulsory.