By Philip A. Fontenot & Hallie P. Coreil
It is common in many personal injury cases that the plaintiff’s doctor will recommend surgery. Under both Louisiana and Federal Rules of Procedure, the defendant may be entitled to obtain an Independent Medical Examination (IME), pursuant to which a physician will examine the plaintiff and render an opinion as to the extent and cause of the plaintiff’s injuries. The defendant will want to obtain the IME prior to the surgery in order to have the best evidence of the plaintiff’s condition following the accident.
Issues arise when the courts are asked to balance the plaintiff’s right to undergo pain-alleviating surgery and the defendant’s right to obtain an IME for use in its defense. The Eastern District of Louisiana recently held plaintiff is under a duty to preserve his condition, such that spoliation would apply if the plaintiff elects to proceed with surgery without affording the defendant an opportunity to obtain an IME. See Julien v. EPL Oil & Gas, 2015 WL 4937900 (E.D. La 2015) (Unreported opinion.) However, in order to have a successful spoliation claim, the defendant must show the plaintiff was in bad faith in moving forward with the surgery. Thus, the defendant should formally request an IME as soon as surgery appears to be a future option. In fact, one court held the plaintiff’s deposition testimony that surgery could be an option was sufficient to put the defendant on notice that it should pursue an IME. (Guzman v. Jones, 804 F.3d 707 (5th Cir.2015)).
In addition, the proactive defendant will specifically ask, as early as possible, that it be notified immediately upon any surgery recommendation. Once notified of an impending surgery, the defendant should take immediate action to arrange an IME prior to the surgery. Often, the court will not find spoliation where the plaintiff undergoes surgery prior to an IME, because the defendant was dilatory in its efforts to obtain an IME. Thus, any defendant in a personal injury action in which the plaintiff is claiming an accident related-injury which could conceivably lead to surgery should be prepared to arrange an IME, and make the plaintiff aware of its intentions, from the outset of litigation.
Davidson Meaux is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.