Medical Malpractice: Can failure to communicate test results be medical malpractice?

Uninsured/underinsured motorist coverage (“UM coverage”) is included in all automobile liability policies by Louisiana law unless the insured “rejects [UM] coverage, selects lower limits, or selects economic only coverage.” What constitutes an adequate rejection of UM coverage has been the crux of countless lawsuits across the state. Recently, in Havard v. Jeanlouis, et al, 2021-C-00810 (La. 6/29/22), the Louisiana Supreme Court examined the validity of a corporate representative’s signature in the context of execution of a UM waiver form. Louisiana courts have found that without a valid signature, UM coverage generally may not be waived.

The Havard court recognized that a corporation cannot “sign” its own name, and that an authorized representative must act on its behalf. Under the facts of this case, an administrative assistant attempted to execute a UM waiver form at the corporate representative’s direction with a stamp of the representative’s signature. The plaintiff argued that the use of the stamp did not meet the requirements for proper execution of the UM waiver form at issue.

Considering these facts, the court noted that Louisiana law of mandate provides that “when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” The court continued: “Accordingly, where one individual signs a UM form on behalf of another individual and authority is not conferred by law, our Civil Code requires this authority be in writing.”

While the corporate representative in Havard verbally instructed his administrative assistant to complete the waiver with his signature stamp, no written mandate existed between the representative and the assistant to confirm this authority. Absent the written mandate, the court disregarded the express intention of the corporate representative and held the form invalid.

The court recognized the impracticality of its holding. However, it also commented “Concerns over the practical impact within the insurance industry in scrutinizing stamped signed UM forms are unavailing. Inconvenience is not absurdity. The insurer has the authority, opportunity, and responsibility to assure the UM form is completed properly. … Practical considerations regarding increased due diligence requirements are matters of policy best directed to the legislature.”

Cases involving UM waiver forms are fact-sensitive. Havard involved unique facts where the company’s authorized agent did not sign the UM waiver form personally. While Havard may be limited to its facts, it reminds that proper execution of a UM waiver form is necessary for UM coverage to be properly waived.

Louisiana Supreme Court Provides Updated Guidance on Execution of UM Waiver Forms

In cases that involve physical injury, defendants often request an “Additional Medical Opinion [AMO]” from a physician of their choice as part of the defense of the case. Louisiana Code of Civil Procedure article 1464 allows a defendant to select a physician to perform a physical and/or mental examination of a plaintiff to challenge the plaintiff’s claimed physical and mental injuries. At times, a plaintiff may voluntarily agree to the examination. However, if an objection is lodged to the requested examination, a defendant must proceed with a Motion to Compel the Additional Medical Opinion. In the context of the motion, the defendant must establish the following for the AMO to be ordered pursuant to article 1464:

1. The mental or physical condition of a party is in controversy; and
2. “Good cause” exists for the AMO.

Because Louisiana courts routinely hold that a plaintiff puts his or her physical and mental condition in “controversy” by filing suit and requesting damages for physical and mental pain and suffering, the focus of a motion for an AMO is often on the “good cause” requirement. “Good cause” is not defined in La. CCP article 1464, and its meaning is not clear. Recently, however, the Louisiana Supreme Court provided guidance on the issue in the case of Hicks v USAA General Indemnity Company, et al., holding that a showing of “good cause” requires that a moving party establish a reasonable nexus between the requested examination and the condition in controversy.

In Hicks, the defendant moved for an AMO with an orthopedic surgeon after plaintiff filed suit, alleging personal injuries to his neck, back, and arm as a result of an accident. In the context of the Motion to Compel, it was argued the plaintiff put his physical condition in controversy by alleging injury. The defendant noted plaintiff treated with two physicians, one of whom did not believe plaintiff was a surgical candidate. The defendant also maintained “good cause” existed because a plaintiff “who asserts mental or physical injury… places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” In support of this argument, the defendant also highlighted inconsistent medical testimony concerning plaintiff’s physical conditions and treatment in support of “good cause.”

In opposing the motion, the plaintiff argued “good cause” was absent because two physicians already had offered opinions on plaintiff’s condition and treatment.

The trial court denied defendant’s Motion to Compel AMO on grounds that “good cause” did not exist. The trial court noted that two physicians already had been deposed and that a physician selected by the defendant could review plaintiff’s medical records and the depositions of the other doctors to offer an additional medical opinion at trial. The case proceeded to trial, where the defendant introduced testimony from a physician who relied upon the materials referenced in the court’s ruling to support his medical opinion. Not surprisingly, the plaintiff argued the opinion of the defendant-selected physician should be discredited because he never examined plaintiff.

After a trial judgment in favor of plaintiff, the defendant appealed. The appeal court also concluded “good cause” did not exist for the AMO, noting the absence of “definitive guidelines as to what constitutes good cause.” The appeal court also noted the fact that defendant had the ability to obtain the desired information by other means was relevant in deciding whether good cause was shown.

The Louisiana Supreme Court reversed the lower courts’ decisions. It started its analysis by noting the basic premise of our system of justice: that both sides to a dispute stand on equal footing in gathering evidence and preparing for trial. It noted the AMO allowed under La. CCP article 1464 actually limits the extensive discovery permitted under Louisiana law, as it balances considerations of “sanctity of the body and the right to privacy with considerations of fairness in the judicial quest for truth.” Article 1464 seeks to achieve balance by requiring more than “relevance” for an AMO, granting the right to courts to order an AMO only when a plaintiff’s condition is “in controversy” and “good cause” supports allowing the examination. The Supreme Court also noted that an AMO may be one party’s only opportunity to independently ascertain the existence and extent of the other party’s claimed injuries.

After balancing these competing interests, the Louisiana Supreme Court found “good cause” under article 1464 requires the moving party to establish a reasonable nexus between the requested examination and the condition in controversy. The decision as to whether the moving party has demonstrated both the “in controversy” and “good cause” requirements lies in the sound discretion of the trial court. At times, the pleadings alone may contain sufficient information to establish a reasonable nexus.

As part of its decision, the Louisiana Supreme Court noted that although meeting the statute’s requirements may entitle a defendant to an examination, a defendant is not entitled to any AMO it request; reasonable limitations may still be applied. It remains the trial court’s role to balance the competing interests and rights of the parties, considering both “sanctity of the body” and the implication of one party’s privacy rights against considerations of fairness for the moving party.

After employing its analysis, the Louisiana Supreme Court concluded the defendant in Hicks demonstrated “good cause” because plaintiff alleged severe injuries as a result of the accident, claimed damages, and inconsistent medical testimony concerning plaintiff’s physical condition existed. It remanded the case for a new trial.

Defendants often request an AMO (“Additional Medical Opinion,” formerly called “IME”) under La. Code of Civil Procedure article 1464 which grants the courts power to order the examination of a plaintiff’s physical or mental condition when in controversy. Increasingly, plaintiff’s counsel will object outright to such examinations or seek to impose onerous restrictions designed to limit or prevent the examination. In Sistrunk v. Florida Marine, LLC, et al, 20-0771 (La. App. 1 Cir. 9/28/20), 2020 WL 575645, the First Circuit rejected limitations sought by the plaintiff and imposed by the trial court.

In Sistrunk, the plaintiff alleged brain injury and psychological problems caused by a blow to the head. In view of the seriousness of the alleged injuries, the defense requested examinations by a neurologist, neuropsychologist, neurosurgeon, and psychiatrist. In response, the plaintiff agreed to examinations but only in areas plaintiff planned to offer medical testimony and under restrictions to include the presence of a third-party and audio or video recording. Although the trial court ordered the AMOs to move forward, it allowed the presence of a third-party who could then audio or videotape the exams. With respect to the neuropsychological examination, the trial court rejected observation by a third-party based upon industry standards which do not allow for such observation.

The defense in Sistrunk sought review from the First Circuit. Without comment, the First Circuit rejected the condition imposed by the trial court that the exams be captured through audio or videotaping. Sistrunk joins similar decisions such as Henry v. Barlow, 06-283 (La. App. 3 Cir. 8/9/06), 937 So. 2d. 895 which likewise prevented audio or videotaping of AMOs. In Henry, the court reasoned that the recording of an AMO would restrict the number of physicians willing to participate.

Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work.