“Relationship” Discovery Directed To Plaintiff Law Firms And Doctors In Florida

By: William P. Dilley, Esq.

“Mr. Jones, how did you come to learn of this physician?”  “Objection, seeks to invade the attorney-client privilege.”  Not in Florida, for now.  In Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So.3d 1240 (Fla. 5th DCA 2015) (review pending), the Florida Fifth District Court of Appeals has held that defendants, and ultimately the jury, have the right to know whether or not a Plaintiff has been referred to a particular physician by their attorney. 

Worley is now pending before the Florida Supreme Court.  The Supreme Court accepted conflict jurisdiction as this holding is in direct conflict with the holding in Burt v. Government Employees Insurance Co., 603 So.2d 125 (Fla. 2d DCA 1992), where the 2d DCA held that the referral of a Plaintiff to a particular medical provider by his or her attorney is a communication protected by the attorney-client privilege. 
 
However, Worley is another example of the trend of Florida Courts allowing exploration of the relationship between Plaintiff law firms and the physicians treating their clients.  In Worley, the most expansive case on this issue to date, the Fifth DCA held, for the first time in Florida, that “after exhaust[ing] all other avenues without success, we find, contrary to the trial court’s preliminary ruling … that it was appropriate for YMCA to ask Worley if she was referred to the relevant treating physicians by her counsel or her counsel’s firm.”
 
Whether or not a Plaintiff has been referred to a medical provider by his or her attorney is the threshold requirement in allowing discovery into the relationship between Plaintiff attorneys and the physicians that treat their clients.  This discovery includes, but is not limited to, information pertaining to past dealings between doctors and law firms and agreements regarding billing and collections for litigation patients.  The rationale for allowing this kind of discovery is that “the more extensive the financial relationship between a party (or its attorney) and a witness, the more likely it is that the witness has a vested interest in that financially beneficial relationship continuing.” 
 
Over the past few years, the Florida District Courts of Appeal have made it clear, a jury has the right to know how involved Plaintiff’s attorneys are with the doctors that treat their patients.  This type of discovery has been in a state of expansion in Florida.  Should the Florida Supreme Court affirm Worley, the trend will certainly continue.  Defense counsel and insurance companies are routinely required to disclose the names of cases in which they referred a plaintiff to a specific doctor for a compulsory medical examination.  The Courts of Florida have finally agreed that there is no meaningful difference between requiring defense counsel or insurers to disclose this information and requiring Plaintiff’s counsel to disclose the extent of the relationship between themselves and the treating physicians involved in the care of their clients.