Written by: Devin J. Barnett
On October 21, 2022, the Louisiana Supreme Court in Augustine v. Safeco Ins. Co. of Oregon, 2022 WL 12360946 (La. 10/21/22) provided guidance on placing restrictions on additional medical examinations under Louisiana Code of Civil Procedure art. 1464. The Court held that if a plaintiff wishes to place restrictions on the examination, it is the plaintiff’s burden to prove that need for the restrictions and the harm which may result if such restrictions are not imposed.
In Augustine, the plaintiffs were injured in an automobile accident. Plaintiffs filed suit against the other driver and his insurer, Safeco Insurance Company of Oregon. The defendants retained Dr. Kevin Greve, a board-certified neuropsychologist, to perform an additional medical examination of the plaintiffs pursuant to La. C.C.P. art. 1464. While the plaintiffs agreed to the additional medical examination, the plaintiffs requested certain restrictions be placed on the examination. Specifically, the plaintiffs sought to limit the scope of the examination to tests previously performed by the plaintiffs’ treating physicians. Plaintiffs argued this limitation was necessary because they suffered from traumatic brain injuries and they should not be subjected to an intense two-day neuropsychological evaluation. Defendants argued that placing restrictions on the additional medical examination would prevent the trial from being conducted on a level playing field because plaintiffs will be able to present evidence favorable to them while defendants will be prevented from conducting full testing which may lead to evidence which will refute plaintiffs’ position. The parties were ultimately unable to reach an agreement as to the scope of the additional medical examination. As a result, defendants filed a motion to compel the additional medical examination.
The district court granted defendants’ motion to compel the additional medical examination in part and denied it in part. The court compelled plaintiffs to submit to the additional medical examination but limited the exam to only tests previously performed by plaintiffs’ treating physicians, explaining it did not want the examination to be “just a fishing expedition.” Defendants sought supervisory review of the district court’s ruling. The court of appeal denied writs “on the showing made.” Defendants then sought review of the ruling with the Louisiana Supreme Court. The Louisiana Supreme Court granted certiorari to consider the district court’s ruling.
The Louisiana Supreme Court recognized it was now confronted with the question of whether a district court which has found good cause for ordering an additional medical examination may place restrictions on how that examination is conducted. In beginning their inquiry, the Court noted that Louisiana jurisprudence has long recognized that “it must be presumed that doctors will conduct their physical examinations properly.” Id. at *5. To rebut this presumption, the courts have required the party seeking to place conditions on the examination to make a showing of special circumstances.
The Court then arrived at a practical framework for addressing the issue of whether to place restrictions on the additional medical exam. The Court explained that the initial burden of establishing good cause for seeking an additional medical examination rests with the moving party, which is typically the defendants. Once the court finds this burden has been satisfied and good cause exists for ordering an additional medical examination, the Court should presume that the examination will be conducted in a reasonable manner. If the opposing party wishes to place restrictions on the examination, the burden shifts to that party to establish special circumstances justifying the imposition of restrictions on the examination. In meeting this burden, the party may not rely on mere allegations or speculation, but must produce competent evidence establishing a need for restrictions and the harm which may result if such restrictions are not imposed.
The Court ultimately vacated the district court’s ruling in which it placed restrictions on the additional medical examination and remanded the case to the district court to conduct a new hearing consistent with the principles discussed above.
In sum, if a plaintiff wishes to place restrictions on an additional medical examination, plaintiff must come forward with evidence to prove the need for the restrictions and the harm which may result if such restrictions are not imposed. Absent evidence showing the need for the restrictions and the harm which may result if the restrictions are not imposed, a defendant is entitled to have a doctor perform an unrestricted additional medical examination under La. C.C.P. art. 1464.