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May 15, 2017
Medical referrals are protected by privilege

The issue is whether a lawyer/doctor financial relationship is discoverable

By Gary Blankenship
Senior Editor

A divided Florida Supreme Court held that a law firm referring a client to a treating physician is protected by the attorney-client privilege, and that the law firm may not be subjected to costly records requests to determine if it has a “cozy relationship” with a medical provider.

Quote The 4-3 opinion, issued on April 13, overturned a ruling from the Fifth District Court of Appeal in the case where the high-profile law firm, Morgan & Morgan, was representing a client suing the Central Florida YMCA. The client, Heather Worley, had fallen in the YMCA parking lot and sought medical treatment.

Doctors in the emergency room, where she twice went for treatment, advised her to see a specialist concerning her knee injuries. Instead, Worley hired Morgan & Morgan and was eventually treated by doctors at three different facilities, Sea Spine Orthopedic Institute, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia.

Morgan & Morgan eventually filed suit against the YMCA. As part of discovery, the defendants asked Worley if she had been referred to the medical providers by her lawyers, who objected to the question, and sought to find out the relationship between the law firm and the medical providers.

Worley declined to answer the question about the referral at her initial deposition on the grounds of attorney-client privilege, and the YMCA then sent interrogatories to the doctors employed by the medical providers and a request to produce to Morgan & Morgan “in an effort to establish the existence of a referral relationship between Worley’s attorneys and her treating physicians.”

The trial court said Worley did not have to answer the referral questions, but allowed the interrogatories. Morgan & Morgan said complying with the request would cost $94,010 and require over 200 hours of attorney review time, but the trial court denied the firm’s objection.

That led to an appeal to the Fifth DCA, which, in conflict with an earlier ruling by the Second DCA, upheld the trial court and also said Worley could testify about whether Morgan & Morgan referred her to the treating physicians.

Justice Peggy Quince, writing for the majority, said the court had to determine more than whether a referral by an attorney and documents relating to a referral relationship between an attorney and medical providers are protected by the attorney-client privilege. Underlying that question is “whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician is discoverable,” she said.

District courts have been answering that question in the affirmative, Quince noted, citing Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999). But Quince said that case involved an insurance company that was a party in the suit and an expert witness it planned to use at trial. Morgan & Morgan, she added, is not a party to the underlying suit.

“Furthermore, Boecher dealt with the discovery of experts who had been hired for the purposes of litigation,” Quince wrote. “Treating physicians, however, ‘[do] not acquire [their] expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make [their] patient[s] well.’ Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981). Moreover, they ‘typically testif[y] . . . concerning [their] . . . own medical performance on a particular occasion and [do] not opin[e] about the performance of another.’ Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005).”

She added that the doctors can be subjected to a claim of bias by introducing the letters of protections, which were used by all of Worley’s doctors, and also showing that all of a practice’s patients are treated using letters of protection, as was the case with one of Worley’s providers.

As for the attorney-client privilege, Quince wrote that deserves maximum protection from the court because of its importance to the legal process.

“Respondent argues that the lawyer’s act of referring a client to a treating physician is an underlying fact, not a communication. We disagree,” Quince wrote. “That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish ‘facts’ from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients.”

The majority also found the supplemental request for information to the law firm and medical facilities to be unduly burdensome, noting the time and expense for a case where damages sought totaled only $66,000.

“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,” Quince concluded.

She was joined in the opinion by Chief Justice Jorge Labarga and Justices Barbara Pariente and Fred Lewis.

Justice Charles Canady wrote a dissent — joined by Justices Ricky Polston and Alan Lawson — that said the Fifth DCA decided the case correctly.

“The financial relationship between a law firm and medical provider, including number of referrals, frequency, and financial benefit, is admissible evidence regarding the bias of a testifying medical provider. Accordingly, this information is relevant and subject to discovery,” Canady wrote, noting that the YMCA contended that Worley’s doctors “grossly inflated” her medical bills and Worley conceded there was “sufficient evidence . . . that the medical bills . . . are unreasonable.”

He added: “A lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services. Therefore, the referral itself is not protected as an attorney-client privileged communication.”

Canady also said the majority wrongly interpreted Boecher, but he added, under that case, “this court should require the disclosure of a financial relationship between a party’s law firm and its witnesses. It should treat the plaintiff’s law firm the same as an insurance company for purposes of discovering and disclosing potential bias.”

He dismissed the majority’s other concerns about costs, access to justice, and the chilling effect on testifying doctors, which he referred in the dissent under the heading “Kitchen Sink,” as “baseless and without merit.”

The court acted in Heather Worley v. Central Florida Young Men’s Christian Ass’n, Inc., Case No. SC15-1086.

[Revised: 04-23-2018]