Ime Parameters Revisited: A New Restriction Framework for Louisiana Additional Medical Examinations

In April, 2021, we reported on a case involving restrictions on Independent Medical Examinations.  Though that opinion was unpublished, it seemed to be out of line with a published opinion in a neighboring appellate Circuit.

A few days ago, the Louisiana Supreme Court gave us more guidance on the issue of restrictions in independent medical examinations in Augustine v. Safeco Ins. Co. of Ore., 2021-CC-01753 (La. 10/21/2022).

IME RESTRICTIONS IN CONTROVERSY

This case involved review of a Louisiana District Court’s order granting a defense motion for additional medical examination (the newer term in Louisiana law for an IME), but placing some restriction on that examination. Plaintiff alleged injuries from an automobile accident. Defendants retained a neuropsychologist to perform an additional medical examination under LA CCP Art. 1464. Under this provision, a defendant is allowed to obtain an IME for “good cause.” The Louisiana Supreme Court has previously ruled that, when a Plaintiff raises personal injury damages, “good cause” exists for an IME, as there would be a reasonable nexus between the requested examination and the condition in controversy. Hicks v. USAA Gen. Indemn. Co. et al., 2021-C-840 (LA 03/25/2022); 339 So.3d 1106.

Faced with a lack of agreement on the conditions of the exam (which are within the Court’s control under CCP Art. 1464(A)), Defendants filed a Motion to Compel the IME. Plaintiffs opposed, requesting that the Court limit the examination to only those tests performed by Plaintiff’s treating physicians. As noted by the Supreme Court, Plaintiffs’ justification was that the examination should not be “just a fishing expedition.”  After the trial judge granted the restrictions, the appellate Court denied the request for supervisory review, and Defendants took the matter to the Louisiana Supreme Court.

LASC REACHES A NEW IME FRAMEWORK

The Louisiana Supreme Court took the matter for review. After well-reasoned discussions of the matter, the Court reached a new framework for dealing with requested IME restrictions.

The Court noted that, in applying article 1464, the 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—something that an IME offers to the party defending against claimed injuries.[1]  While the district court believed Plaintiffs’ physical and mental conditions were in controversy, and that an IME was warranted, it maintained Plaintiffs’ requested limitations on examination. Defendants contended the restrictions prevented a fair trial by preventing them from conducting full testing on the Plaintiffs, who were able to present their own favorable evidence without restriction.

The Supreme Court stated that “any decision which places undue restrictions on the health care provider’s ability to perform the examination could frustrate the other party’s ability to obtain relevant evidence.” It went on to state that “[i]t must be presumed that doctors will conduct their physical examinations properly.”[2]

With this in mind, and citing several cases, the Louisiana Supreme Court stated that, to rebut the presumption that a doctor would properly perform an examination, the party seeking restrictions or condition on the IME must show a special circumstance justifying the requested restrictions. The Court stated, in combining its review of law and prior cases, it arrived at the following practical framework to address requested restrictions to IMEs. First, the initial burden of establishing good cause rests with the party seeking the independent medical examination. Once that burden is satisfied, the court should presume that the examination will be conducted in a reasonable manner. The burden then shifts to the party wishing to place restrictions on the additional medical examination to establish “special circumstances justifying the imposition of restrictions on the examination.”

As for the burden of the party requesting IME restrictions, the court stated that “the party may not rely on mere allegations or speculation, but should produce competent evidence establishing a need for restrictions and the harm which may result if such restrictions are not imposed.”

Under this newly announced framework, the Court vacated the ruling granting Plaintiffs’ requested restrictions.

CONCLUSION

This case provides much needed clarity on the issue of IMEs and potential restrictions in Louisiana. In terms of general personal injury claims, and combining the recent pronouncements from the Louisiana Supreme Court, we are left with a very clear and succinct outline for obtaining “additional medical examinations.” First, if a particular injury or condition is in controversy, the opposing party will generally have a right to an IME. At that point, if the party whose condition is in controversy wishes to restrict the IME in any fashion, that party bears the burden of demonstrating, through competent evidence and not mere speculation or allegations, that restrictions are warranted and harm may result in the absence of restrictions. Otherwise, it will be presumed that a medical professional will perform a reasonable and proper additional medical examination.

While these precepts appear rather clear, it remains to be seen how Louisiana Courts will apply the parameters at the district level and up through the appellate courts. We will keep an eye on these issues and report accordingly.

[1] Citing Hicks at 1112.

[2] Citing Simon Castille, 174 So.2d 660, 665 (La. App. 3 Circ.), writ denied (La.), cert denied, 86 S.Ct. 325 (1965).