Tag: AMO

Supreme Court Establishes Shifting Burden of Proof for Additional Medical Opinions (“AMO”)

12.20.2022

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. This is called an Additional Medical Opinion (AMO); this was previously referenced as an Independent Medical Examination (IME). Earlier this year, the Louisiana Supreme Court, outlined the “good cause” requirement of the statute—an essential element required to proceed with an AMO. But, what remained as a question was the scope of an AMO and which party had the burden to deal with requested restrictions on the physician’s medical exam. This question was answered: In Augustine v. Safeco Insurance Company of Oregon, the Louisiana Supreme Court held that after “good cause” has been shown for the examination, the party seeking to limit the scope of the AMO bears the burden to justify the restrictions.  

In Augustine, a sequel to Hicks v. USAA General Indemnity Company, Et al,  the Court held that if the party to be examined for the AMO, usually the plaintiff, wants to place limits upon the examination, that party then has the burden of proof to justify the need for any restrictions or limitations with competent evidence. This ruling appears to show a trend in which the Court is confirming a defendant’s ability to obtain an AMO to support its defenses to a personal injury claim.  Augustine follows another Supreme Court decision from March of 2022, in which the Court held that a party establishes “good cause” for an AMO if that party shows a “reasonable nexus” between the requested examination and the condition in controversy. See Hicks v. USAA General Indemnity Company, Et al. The Hicks decision eased the hurdles that defendants faced when seeking to compel AMOs pursuant to Louisiana Code of Civil Procedure article 1464. For more information on the Hicks decision, see our prior blog here. Supreme Court Clarifies “Good Cause” for Additional Medical Opinion (“AMO”) (keoghcox.com)

In Augustine, the defendants requested an AMO. The plaintiff agreed to the examination, but the parties were unable to agree on “certain restrictions” the plaintiff sought to impose on the scope of the examination. The defendants ultimately filed a Motion to Compel regarding this issue. The District Court limited the examination to only those tests that the plaintiff’s treating physicians had performed. The District Court also noted that it did not want the AMO to turn into a “fishing expedition.” The Court of Appeal denied the defendant’s request for review of the Trial Court’s decision. The defendants then sought relief from the Supreme Court, which vacated the Trial Court’s ruling and remanded the case for further proceedings consistent with its opinion.

In its opinion, the Supreme Court set forth the burden of proof each party has in the context of a Motion to Compel an AMO. As outlined in Hicks, the party requesting the AMO initially has the burden to establish “good cause” for the AMO. Importantly, the Augustine court found that once “good cause” has been found, “the court should presume that the examination will be conducted in a reasonable manner.” Because it is presumed the examination will be conducted reasonably, if a party opposing the AMO wants to place restrictions on the examination, the burden now shifts to that party to establish “special circumstances” that justify the restrictions they request. To meet this burden, the opposing party must produce “competent evidence” to establish (1) the need for the restriction and (2) that harm that will result if the restrictions are not imposed.  The type of evidence that may support AMO restrictions under Augustine likely will vary depending on the unique facts of each case. However, Hicks and its “sequel,” Augustine, provide clarification and guidance to parties seeking to compel or limit an AMO under article 1464.

Case References:

Augustine v. Safeco Insurance Company of Oregon, 2021-01753 (La. 10/1/22), __ So.3d __.  

Hicks v. USAA General Indemnity Company, Et al., 2021-00840 (La. 3/25/22), 339 So.3d 1106.

Written by Chad A. Sullivan and George A. Wright

First Circuit Orders Multiple AMOs Without Audio or Video Recording

10.07.2020

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.