Baldwin Haspel Burke & Mayer LLC

Maritime Update: Audio and Video Recordings of Defense Medical Evaluations Overruled

Bill Schwartz - 

In the defense of personal injury claims, while not exclusive to the maritime setting, both state and federal procedure allow the defendant to seek orders of the court to allow for medical evaluations. The Louisiana code article [C.C.P. art. 1464] derives from the Federal Rule of Civil Procedure Rule 35. Both require a showing of “good cause” and hold that when the physical or mental condition of a party is in controversy, the court may order the party to submit to physical or mental examinations by physicians. It is important to note that this type of court order may only be made on motion for good cause and upon specifying the time, place, manner, conditions, and scope of the requested examinations.

The discovery rules in no way limit the number of such examinations or evaluations. The requested examinations will be granted by the Court dependent upon the facts and circumstances underlying the request. Particular to the maritime injury lawsuit, a Jones Act employer receiving a claim of injury and need for treatment has a right to investigate the legitimacy of the claim. The Jones Act employer can also “require corroboration of the claim before commencing payments.” Since these claims for maintenance and cure are wholly dependent upon medical determinations, seeking medical examinations to investigate are necessary in many cases.

In a recent case before the 18th Judicial District Court for the Parish of Iberville, while granting the defendant the right to multiple examinations by doctors who specialized in neurology, neurosurgery, neuropsychology and psychiatry, the trial Court went further and also ordered that the plaintiff could have his family members attend the examinations and perform audio and video recordings of the examinations.

The ruling by the lower trial Court was appealed. On appeal, the State of Louisiana Court of Appeal for the First Circuit reversed. They held the examinations were to be conducted without audio or video recordings. While the case can still be appealed to the Louisiana Supreme Court, this decision is, in our opinion, a correct application of the procedure. It does not allow the plaintiff, his family or his attorneys to corrupt the independence and objectivity of the medical examinations by having third-party observers or an audio/video recording.

The case is “Sistrunk v Florida Marine, LLC” decided September 28, 2020 and bears Docket Number 2020-CW-0771 in the Court of Appeal for the First Circuit. It is not yet a reported decision.


If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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