Hello everyone and welcome to this Ethics Alert which will discuss the important very recent Florida Supreme Court opinion which prohibit inquiries by defense counsel into referral relationships between the plaintiff’s law firm and a physician. The case is Worley v. Central Florida Young Men’s Christian Ass’n, Inc., No. SC15-1086 (Fla. SC April 13, 2017). The Florida Supreme Court opinion is here: https://www.floridasupremecourt.org/decisions/2017/sc15-1086.pdf
The Florida Supreme Court considered the case because of a certified conflict under art. V, § 3(b)(4), Fla. Const. in the opinions of the Fifth District Court of Appeal (in this case) and the Second District Court of Appeal (in Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992).
According to the opinion, Heather Worley was a plaintiff in a lawsuit against YMCA after she allegedly fell in a Florida YMCA parking lot. Worley was represented by Morgan & Morgan. At Worley’s depositions, YMCA’s lawyer asked if she was referred to her specialists by her attorneys and Worley’s lawyer objected on the ground that the information was attorney-client privileged.
YMCA then served interrogatories directed to specific doctors employed by three medical providers with whom Worley treated and also served a supplemental request to produce to Morgan & Morgan, to attempt to establish the existence of a referral relationship between Morgan & Morgan and the treating physicians. The opinion states that “(t)hese efforts were based on YMCA’s suspicions that there was a ‘cozy agreement’ between Morgan & Morgan and the physicians, due to the amounts of Worley’s medical bills.”
Worley objected (through Morgan & Morgan) and stated that the discovery requests were “overbroad, vague, unduly and financially burdensome, irrelevant and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4).” She also contended that Morgan & Morgan does not maintain “information for treating physicians as in this matter, or otherwise.”
At a hearing on Worley’s objections, “the trial court only sustained Worley’s objection to the question regarding whether she was referred to the doctors by her attorneys and ‘did not address Worley’s objections to YMCA’s other outstanding discovery requests at that time.’” The Fifth DCA upheld the lower court’s order and relied on Florida district court decisions which held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable if evidence of a referral relationship can be shown. Those cases relied upon the Florida Supreme Court’s decision in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999).
In its 4-3 decision, the Court rejected the application of Boecher and found that the defense attorneys were prohibited from inquiring about the referral relationships between plaintiff’s firm, Morgan & Morgan, and Sea Spine Orthopedic Institute stating that “(a)llowing further discovery into a possible relationship between the physician and the plaintiff’s law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege.” “We do not agree with the Fifth District’s attempt to circumvent the attorney-client privilege out of perceived necessity. The attorney-client privilege is the oldest confidential communication privilege known in the common law.”
“Even in cases where a plaintiff’s medical bills appear to be inflated for the purposes of litigation, we do not believe that engaging in costly and time-consuming discovery to uncover a “cozy agreement” between the law firm and a treating physician is the appropriate response. We are concerned that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. Moreover, we worry that discovery orders such as the one in this case will inflate the costs of litigation to the point that some plaintiffs will be denied access to the courts, as attorneys will no longer be willing to advance these types of costs. Finally, attempting to discover this information requires the disclosure of materials that would otherwise be protected under the attorney-client privilege.”
The Supreme Court opinion quashed Fifth DCA’s decision permitting the discovery and approved the decision of the Second DCA.
Bottom line: This case is important since it addresses and appears to settle the question of whether the defense in a personal injury case (or any case) can use discovery to attempt to determine if there is a “cozy” relationship between the plaintiff’s law firm and treating medical providers. The opinion found that the information sought was protected by the attorney/client privilege, §90.502(2), Fla. Stat., and that the discovery was prohibited.
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Joseph A. Corsmeier, Esquire
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