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.
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