In December 2020, I wrote about a Court of Appeals case holding that courts cannot permit parties to video record their medical examinations. It was proof that everything isn’t recorded, I said. Forget that. We’ll have to look for proof elsewhere because the Supreme Court reversed in Schaumann-Beltran v Gemmete.
The facts and holding in Schaumann-Beltran are pretty straightforward. The plaintiff filed a medical-malpractice action against the defendants. The parties agreed that she would submit to a neuropsychological evaluation. The plaintiff wanted her attorney present and to record the examination. The defendant opposed both requests. The trial court split the baby—it ordered that the plaintiff could record the evaluation instead of having her attorney present.
The Court of Appeals’ analysis in Schaumann-Beltran was straightforward too. The relevant court rule permits courts to allow the examinee’s attorney to be present. MCR 2.311(A). It says nothing about recording the examination. So the Court held that it doesn’t permit recording and reversed.
The Supreme Court’s analysis might be even simpler than the Court of Appeals’. The court rule allows courts to specify “conditions.” “[W]hether to videorecord the examination is plainly a ‘condition,’” it held. So it’s allowed.
The Court went on to distinguish two cases, explain the history of the court rule, and remanded for the Court of Appeals to consider whether recording was appropriate under the particular facts of the case. But the upshot remains: courts can permit parties to video record their medical examinations.