Florida Supreme Court Settles Lower Appellate Conflict Regarding Physician Referrals in Personal Injury Cases

The Supreme Court recently settled a certified conflict between the Fifth and Second District Courts of Appeal, asking whether a party is required to disclose that their attorney referred them to a particular physician for treatment. The legal analysis hinged on whether or not the attorney-client privilege shielded a party from disclosures otherwise required by the rules of discovery. In a recent case (No. SC15-1086), the Supreme Court determined that in this scenario, there is a confidential communication between the attorney and the client, subject to the constitutional privilege.

The Fifth District’s decision was quashed, and the Second District’s was affirmed. In the Fifth District case, the plaintiff slipped and fell in a parking lot. After seeking treatment in an emergency room, she was referred to a specialist for the pain in her right knee. Due to a lack of money, she did not go, but she sought out representation. After retaining legal counsel, she was seen and treated by different physicians from an orthopedic institute and two surgical centers. The injured woman filed suit against the business that owned the parking lot, seeking damages for the cost of her treatment.

During the discovery phase of the litigation, the defendant business repeatedly tried to ask the injured woman about the relationship between her attorneys and the treating physicians seen after she hired counsel. The same questions were asked during the deposition, but the injured woman’s counsel objected, claiming the attorney-client privilege. Interrogatories were then sent by the business to the treating physicians, requesting information to help establish the existence of a referral relationship. The injured woman responded by asserting the requests were overly broad, vague, and unduly burdensome in violation of the Florida Rules of Civil Procedure.

The defendant business persisted in its attempt to learn this information, eventually seeking a motion to compel from the trial court. The court granted the request, requiring the injured woman to produce copies of any and all documents reflecting a formal or informal agreement between the law office and the physicians. The order went on to require the law firm to produce the documents if the health care providers were unable to do so, without specifying who was to bear the expense of complying with the order. Again, the injured woman insisted she was protected by the attorney-client privilege. The injured woman’s request was denied, so she sought relief from the Fifth District Court of Appeal. The appellate court affirmed the trial court’s ruling, finding it was appropriate for the court to order the hospital and the law firm to produce the records.

The Supreme Court disagreed. The court noted the defendant’s reliance on a prior Florida Supreme Court decision that allowed a party to discover the extent of the financial relationship between an insurance company and an expert witness. The court distinguished that ruling from the case at hand, concluding this was not analogous to a law firm’s possible relationship with the plaintiff’s treating physician. The law firm, unlike the insurance company, is not a party to the case. The court pointed out that treating physicians, unlike experts, do not acquire their knowledge for the purpose of litigation but do so to make their patients well. The court determined that while the Rules of Evidence allow defending parties to use discovery to help impeach any witnesses, they do not permit discovery that falls under the attorney-client privilege. The Supreme Court rejected the Fifth District’s reasoning that the privilege could be set aside out of necessity. The court ruled that none of the exceptions to the privilege applied in this instance, and the discovery request was inappropriate.

The Florida premises liability attorneys at Donaldson & Weston can support you in every phase of litigation. Our attorneys can aggressively pursue all avenues of legal relief to help you try to maximize the damages you deserve. Call today at 772-266-5555 or 561-299-3999 for a free, confidential consultation.

More Blog Posts:

Florida District Appellate Court Reviews Future Medical Expenses in Multi-Car Accident Case, Florida Injury Lawyer Blog, November 28, 2016

Federal Circuit Court of Appeal Declines to Find Equitable Tolling in Slip and Fall Case, Florida Injury Lawyer Blog, October 21, 2016