with whom HARGRAVE and TAYLOR, JJ., and LAVENDER, S.J., join, dissenting:
¶ 11 dissent to the majority opinion, which allows medical examinations pursuant to 12 O.S.2001, § 3235(D) to be videotaped. The statute does not provide for videotaping of the examination and therefore such an action is unauthorized by the legislature.
¶ 2 The issue is whether the petitioners have any legal basis to demand to videotape the court-ordered physical examinations. In subsection D of § 3235 the statute expressly allows the presence of a representative during the required examination. The legislature did not go so far as to include videotaping. We should not assume this was an oversight by the legislature.1 By specifically adding attendance by a representative, I believe the legislature has excluded other more invasive means during the examination.2 I am not persuaded the statute should be judicially amended to allow videotaping.
¶ 3 A blanket requirement allowing videotaping raises other issues. If the examinee has a right to videotape the examination and use that recording as evidence during the trial, the examining physician must be given the same right, even over the objection of the examinee. Metropolitan Property & Casualty Insurance Company v. Overstreet, 103 S.W.3d 31, 34 (Ky.2003) observes that the common law considered court-ordered medical examinations repugnant to a person’s privacy and bodily integrity. Overstreet further quotes the holding of Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 252, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), that “The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow.” While the right to compel a physical examination has been settled by statute in this state, compulsory videotaping of the examination is certainly an intrusion not contemplated by the statute. Accordingly, I dissent.
. As an illustration, both Arizona and Washington explicitly provide for video recording by statute in their versions of Rule 35. Ariz.Rev.Stat. Ann. Rules of Civil Procedure, Rule 35(a) (amended October 1, 1992, effective Dec. 1, 1992), Wash. Rev.Code, Superior Court Civil Rules, Rule 35(a)(3) (amended September 1, 2001).
. In Edmiston v. Superior Court of Los Angeles, 22 Cal.3d 699, 586 P.2d 590, 150 Cal.Rptr. 276 (1978), the court, when presented with the same facts now before this court, disapproved videotaping holding that the legislature intended medical examination depositions pursuant to California's version of Federal Rule 35 be reported only in the manner specified by statute.