Lawyers shouldn’t secretly record medical exams

“Marquette, Mich. railway trackman sues his employer, alleging an on-the-job injury. Employer schedules an independent medical exam to assess his injuries. Trackman refuses to fill out medical questionnaire and refuses to answer examiner’s questions. Also, his lawyer tags along to the exam, which is … uncommon. And the lawyer secretly records the exam on his cell phone. District court: Given the ‘flagrant and repeated misconduct exhibited by Plaintiff and his attorney,’ the entire case is dismissed. Sixth Circuit: Affirmed. Although we’re generally reluctant to dismiss a plaintiff’s suit merely to sanction the plaintiff’s lawyer, both the trackman and his lawyer behaved badly here. Judge Sutton, concurring: Also, we shouldn’t be at all reluctant to hold parties accountable for their lawyers’ misdeeds, even if the parties themselves are not at fault.” [John K. Ross, Institute for Justice “Short Circuit” on Mager v. Wisconsin Central, Sixth Circuit]


  • In Florida, some of this behavior is judicially sanctioned. Plaintiff’s attorney has the right to attend a defense medical exam, to videotape it (defense attorney cannot and the video taken by the plaintiff is considered work product until he decides to use it at trial) and sometimes to have his client refuse certain medical history questions.

  • […] reported by Overlawyered, the Sixth Circuit recently affirmed a district court’s decision to dismiss a case due to […]

  • Florida is in the 11th circuit, not the 6th. This decision has no impact on them.

  • Whether states and courts approve of disclosed taping, or even mandate it, is of course a different question from whether they will be incensed by covert, undisclosed taping.

    • Isn’t it funny, though. We’ll nail this guy (and I don’t dispute the outcome here, but the government can talk out of both sides of its mouth in the SORNA case (handed down today) and it’s all good.

  • Wouldn’t this violate HIPAA six different ways?

    • How would it violate HIPAA? Sounds like everything was done with the examinee’s consent (it was his own lawyer taping). The patient is in complete control of his own information.

    • How would it violate HIPAA? It’s the plaintiff’s own attorney. If he didn’t want him to hear about any medical information, he shouldn’t ask the attorney to come in the first place.