The Louisiana Supreme Court recently issued a very significant ruling in a personal injury lawsuit regarding what a Defendant is required to show in order to obtain an “Additional Medical Examination” or “AME” (what used to be called an “Independent Medical Examination” or “IME”). In Ronald Hicks v. USAA General Indemnity Company, et al, no. 2021-C-00840, _So.3d_ (LA. 3/25/22), the Supreme Court held that under Article 1464 of the Louisiana Code of Civil Procedure, the moving party is required to “establish a reasonable nexus between the requested examination and of the condition in controversy.” Prior to the Hicks decision, there were no clear parameters as to what would constitute “good cause” for an AME.
Ronald Hicks v. USAA General Indemnity Company, et al – Background
The facts in Hicks, and the way that the trial played out, are quite interesting. Ronald Hicks alleged injuries to his neck, back and arm after his truck was rear-ended at 60 mph by the defendant driver who failed to brake. The Defendants stipulated that their driver was 100% negligent, so the focus of the trial was on Mr. Hicks’ injuries and damages.
Following the accident, Hicks had seventy-nine medical visits and a total of 13 procedures with his chosen orthopedists, pain management specialists, and surgeons. His worker’s compensation insurer allowed him to choose Dr. Jason Smith as his orthopedic spine surgeon. Dr. Smith did not find any evidence of obvious trauma and he opined that Hicks’ pre-existing degenerative disc disease had been aggravated in the accident. Dr. Smith felt that Hicks was not a candidate for any surgery, but he also did not believe that Hicks was exaggerating his pain. Plaintiff ceased treatment with Dr. Smith on January 6, 2017, approximately fifteen months post-accident. Hicks thereafter began treating with Dr. Jorge Isaza, spinal orthopedic surgeon. In his discovery deposition in 2017, Dr. Isaza testified that he had recommended that Hicks have cervical surgery, but he could not definitively suggest that Hicks needed lumbar surgery because he had not been able to identify the source of Hicks’ lumbar pain.
In November of 2017, Defendants moved for an AME under Article 1464 and sought an examination by board-certified orthopedic surgeon, Dr. Chambliss Harrod. Defendant argued that plaintiff was seeking damages for injury, disability, lost wages, loss of earning capacity and loss of enjoyment of life and therefore, Hicks had put his physical condition and future ability to work into controversy. Defendants argued that these issues satisfied the requirement for “good cause” for an AME under Article 1464.
Defendants’ Motion to Compel and AME DENIED
Plaintiff argued that plaintiff had already been examined by Dr. Smith and Dr. Isaza, two orthopedic specialists, and that a third opinion by the defendants’ chosen orthopedic surgeon was unnecessary. Judge Kevin Kimble of the 18th Judicial District Court denied the defendants’ Motion to Compel and AME on the grounds that there was no “good cause” for the AME by Dr. Harrod shown by the Defendants. Judge Kimble ruled that Dr. Harrod could review plaintiff’s medical records and the depositions of the treating physicians and he could base his testimony on that information without actually having to lay hands on the Plaintiff.
In April 2018, just three weeks prior to trial, Dr. Isaza performed a lumbar nerve block procedure and from Hicks’ response, Dr. Isaza determined for the first time that the L5-S1 disc was the source of Hicks’ pain. Dr. Isaza did a “180” and completely changed his sworn deposition testimony by recommending that Hicks undergo L5-S1 anterior lumbar discectomy and fusion surgery. Defendants moved to continue the trial, arguing that the change in Dr. Isaza’s opinion required that Dr. Harrod be allowed to perform an in-person examination of plaintiff, but Judge Kimball denied the motion. Defendants sought a writ application to the Louisiana First Circuit Court of Appeal in an effort to get the trial continued, but the writ was denied.
The case proceeded to trial by jury, during which Hicks’ counsel repeatedly emphasized that Dr. Harrod had not personally examined Mr. Hicks. The Supreme Court reviewed the trial record and noted that “Dr. Harrod’s failure to personally examine plaintiff permeated the trial.” Plaintiff’s counsel came out of the box in his opening statement saying that Dr. Chambliss Harrod had merely “reviewed medical records cold…” In his video deposition, Dr. Harrod had to concede that it would have been more helpful had he personally examined Hicks, and that an in-person exam was his preference. Dr. Harrod agreed that plaintiff was a candidate for neck surgery but disagreed that further back surgery was necessary.
In his closing argument to the jury, plaintiff’s counsel hammered the fact that Dr. Harrod had not personally examined plaintiff:
“[T]he context in which he is presented in this case is diabolical… you know, [Dr. Harrod] came into this case and he never saw the patient. He said multiple times in order to make a decision, to make an opinion, he’d have to see him, and he didn’t see him… but when [Dr. Harrod’s] wearing a Defense hired gun hat, he changes all of this, critical of everything they say and do. He cannot be believed, he’s just not credible. He’s not seen this patient.”
Incredibly, after the jury had retired to deliberate, they sent the trial Court a written question of whether Dr. Harrod had been “allowed to see” plaintiff, but the Court declined to answer the question. The jury rendered a very favorable award of $1,298,410 in damages which included $285,000 for future medical expenses.
Defendants appealed the jury’s verdict to the First Circuit without success. The First Circuit rejected Defendants’ argument that they had made a showing of “good cause” to compel the AME with Dr. Harrod. The First Circuit noted that just before the trial, when the Defendants were trying to convince the trial judge to allow them the AME, the Defendants had offered that Dr. Harrod would examine Mr. Hicks for only about 20 minutes. The First Circuit seized on that “offer” and reasoned that the short duration for the AME actually diminished the validity of Defendants’ argument that the AME was necessary; they felt that Dr. Harrod could adequately give his opinions with only reading the depositions of Drs. Smith and Isaza and Hicks’ medical records.
Defeandants Appeal to Louisiana Supreme Court
The Defendants then appealed to the Louisiana Supreme Court, which reversed and remanded the case back to the trial court for a new trial. The Supreme Court noted:
“A basic premise of our system of justice is that both sides to a dispute stand on equal footing in gathering evidence and preparing for trial.” La. C.C.P. art. 1422. The supreme court had previously summarized the Louisiana discovery process as a means to “afford all parties a fair opportunity to obtain facts pertinent to the litigation,” and to “discover the true facts and compel disclosure of these facts wherever they may be found,” and to “assist litigants in preparing their cases for trial.” (citations omitted).
The Louisiana Supreme Court considered Rule 35(a) of the Federal Rules of Civil Procedure given that Article 1464 was modeled on the federal rule. The Court also cast its eye towards Texas in determining that under Article 1464, a showing of “good cause” “requires that the moving party establish a reasonable nexus between the requested examination and the condition in controversy,” citing Coates v. Whittington, 758 S.W. 2d. 749, 753 (Tex. 1988).
The Supreme Court in Hicks noted that the moving party must establish good cause for an examination by demonstrating a reasonable nexus between the requested examination and condition in controversy; however, the moving party does not necessarily establish good cause for any examination. The Court left it up to the trial court to balance out the competing interests and rights of the parties with consideration of the plaintiff’s right to privacy versus the fairness to the defendant.
Mr. Hicks clearly put his final condition “in controversy” by alleging injuries to his neck, back, and arm as a result of the accident. The Supreme Court also found that there was good cause to compel the AME of Hicks because there was a reasonable nexus between the condition in controversy and examination sought. “Because Defendants did not have the opportunity for an expert not chosen by plaintiff to conduct an examination, the jury was inhibited from arriving at the truth, which upset the careful balancing act that Article 1464 seeks to justify.” The Court also rejected First Circuit’s view that in order to establish “good cause,” the proposed defense AME doctor had to review plaintiff’s experts’ depositions and his medical records, and then the proposed AME doctor had to “specifically explain” how her examination “was still necessary.” The Supreme Court rejected that approach because it conflicted with the delicate balancing act required behind the intent of Article 1464.
The Upshot for Defendants
This is an important case for Defendants who seek to have a personal injury plaintiff examined by a doctor of their choosing. It prevents a Defendant from having to go to trial with their medical expert being limited to testifying based solely on a review of medical records and deposition testimony.