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The New Hicks Standard for "Good Cause" for Additional Medical Examinations

April 11, 2022

Casey B. Wendling

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On March 25, 2022, the Louisiana Supreme Court’s decision in Hicks v. USAA Gen. Indem. Co., 2021-00840 (La. 03/25/22) provided much-needed clarification on the meaning of “good cause” as contemplated by Louisiana Code of Civil Procedure art. 1464, the article governing orders for additional medical opinions for physical or mental examination of persons (“AME”). Article 1464 states, in pertinent part,

When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law.[…] The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. La. Code Civ. Proc. art. 1464(A) (emphasis added).

This issue was a res nova issue for the Louisiana Supreme Court. Previously, without the guidance of the Louisiana Supreme Court, Louisiana Courts of Appeal applied the “less intrusive means” test when determining whether good cause existed for a requested AME. This standard required an AME physician to review the depositions of plaintiff’s experts and plaintiff’s medical records before moving for an AME, and then specifically explain how his examination “was still necessary” given the availability of alternative sources of information. Hicks,2021-00840 at *11. The Louisiana Supreme Court explicitly declined to adopt this “less intrusive means” test. Id. at *12.

The Court instead adopted a new standard—the “reasonable nexus” test. In the Court’s words, “a showing of good cause under article 1464 requires only that the moving party establish a reasonable nexus between the requested examination and the condition in controversy.” Id. at *10. The Court’s decision indicates this is a lower standard than the “less intrusive means” test previously adopted by the First Circuit. Id. at *10.

In declining to adopt the “less intrusive means” test as a component of “good cause,” the Court found the previously used test “favors a plaintiff’s privacy interests over fairness in the adversarial process, which denies defense experts equal access to evidence.” Id. at *12. Because plaintiffs in most lawsuits have been examined only by the physicians of their choice, allowing the defendant to obtain an additional medical opinion under Article 1464 is “vital, as it may be one party’s only opportunity to independently ascertain the existence and extent of the other party’s claimed injuries.” Id. at *8. In making it easier for a defendant to establish “good cause” for an AME, the Louisiana Supreme Court clearly intended to increase defendants’ opportunity to have a plaintiff examined by a physician of its choosing and obtain an additional medical opinion for use at trial.

Additionally, in its decision, the Louisiana Supreme Court provided insight on the issue of conditions for an AME. The Court stated that art. 1464 requires the trial court to take an active role in ordering an examination and specify the time, place, manner, conditions, and scope of the examination. In a footnote, the Court noted:

The court of appeal erroneously found that article 1464 requires the mover to specify the “time, place, manner, conditions, and scope” of an AME. The plain language of article 1464 requires that the trial court, not the moving party, must so specify. See La. C.C.P. art. 1464(A) (“The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”) (emphasis added).

Id. at *10. Although this portion of the Louisiana Supreme Court’s decision is dicta, these comments indicate the Court’s belief that: (1) the mover is not responsible for setting forth the time, place, manner, conditions and scope of the requested examination, and therefore a motion requesting an AME cannot be deficient for failing to include same; and (2) conditions cannot be unilaterally imposed by either party because they should be specified by the court in its Order. Given the recent influx of litigation regarding conditions for AMEs, this will undoubtedly be an issue the Louisiana Supreme Court will have to elaborate on in the near future.

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