Supreme Court Issues Victory for Plaintiffs and Treating Doctors
In an exciting win for Florida personal injury plaintiffs and their physicians, the state’s Supreme Court issued a recent landmark decision in the case of Worley v. Central Florida Young Men’s Christian Ass’n, Inc. The main issues in Worley were the permissibility of discovery as to who referred a plaintiff to her treating physicians and the financial relationship between those treating physicians and the plaintiff’s attorney. These hotly contested issues permeate many personal injury cases. In a very cogent opinion, the Supreme Court resolved these long-standing conflicts in favor of Florida personal injury plaintiffs by fully restoring the attorney-client privilege and making treating physician financial discovery off-limits.
The Worley case involved a “relatively routine” trip and fall wherein the plaintiff suffered a knee injury in the YMCA parking lot due to a hazardous condition. Despite two emergency room visits and recommendations to see an orthopedic specialist, Ms. Worley did not have insurance or sufficient funds to seek proper medical care. She retained a personal injury law firm and then began treating with physicians who were able to fix her knee.
When Ms. Worley’s attempts to settle with the YMCA failed, she filed a personal injury lawsuit for premises liability. During Ms. Worley’s deposition, the defense attorney inquired as to who had referred her to her doctors. Her attorney objected based on the attorney-client privilege. Subsequently, the defendant issued written discovery to Ms. Worley’s treating physicians and her attorneys. The discovery sought the production of documents reflecting written referral relationships and the amount of monies paid by Ms. Worley’s law firm to her treating doctors over a three-year period.
The law firm representing Ms. Worley objected to the aforementioned discovery requests for a multitude of reasons, including violation of the attorney-client privilege. Additionally, the plaintiff’s firm argued that the discovery sought was overbroad, burdensome, and beyond the scope of permissible bias discovery under Florida law. When the trial court overruled the objections, Ms. Worley’s attorneys appealed to the Fifth District Court of Appeal. On appeal, the Fifth DCA also overruled the objections and certified conflict with the Burt v. Gov’t Employees Ins. Co., 603 So.2d 125 (Fla. 2d DCA 1992). In Burt, a prior Second District Court of Appeal case, the appellate court ruled that any question regarding whether an attorney referred a plaintiff to a doctor is strictly privileged.
In resolving the Worley case in favor of the plaintiff, the Supreme Court crystalized that the financial relationship between a plaintiff’s law firm and her treating physician is not discoverable! This overturned a long line of ill-conceived district court decisions that held that if a referral relationship is established, financial discovery is proper (see e.g. Brown v. Mittleman, 152 So. 3d 602 (Fla. 4th DCA 2014). The Supreme Court distinguished the Worley decision from prior holdings on expert discovery (see e.g. Allstate Ins. Co. v. Boecher) by affirming that: “the relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and its retained expert”. The Court noted that experts such as defense medical examiners are retained directly by a law firm or insurance company for purposes of litigation whereas a treating physician decides to treat a plaintiff/patient not for litigation but rather simply to make her well.
The Supreme Court noted concern of a possible chilling effect that would make it harder for Floridians to obtain necessary medical care if physicians feared being subjected to financial discovery. In further supporting the Worley opinion, the Supreme Court noted that the plaintiff’s attorneys and their physicians are not parties to the lawsuit, that the discovery sought was unduly burdensome, and that defendants had other means to prove a treating physician’s bias, such as Letters of Protection.
Resolving the other issue set forth in Worley, the Supreme Court left no doubt that any question as to whether a plaintiff was referred to her treating doctor by her lawyer is strictly forbidden under the attorney-client privilege. The Supreme Court reinforced the power of the “oldest confidential communication privilege known in the common law” and ruled that there is no compelling interest or known exception that would apply. Indeed, the Court set forth that the attorney-client privilege is “an interest deemed worthy of maximum legal protection” that is necessary to “encourage the free flow of information between attorneys and their clients”. In a post-Worley world, the sacred attorney-client protection now applies to plaintiff attorneys and their clients regarding the choice of treating physicians.
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