Defense lawyers routinely ask personal injury plaintiffs how they came to be treated by their doctors. But defense lawyers in Florida will no longer be allowed to ask plaintiffs if their lawyers referred them to physicians for treatment even if those attorneys repeatedly refer their clients to the same doctors. In Worley v. Cent. Fla. YMCA, 2017 Fla. LEXIS 812 April 13, 2017), the Florida Supreme Court held that the attorney-client privilege protects a party from being required to disclose if her attorney referred her to a doctor for treatment. In a 4-3 ruling, the Court held that asking whether a lawyer referred a client to a doctor “implicates a confidential communication between the attorney and the client.”
In Worley, the plaintiff fell in the YMCA parking lot and injured her right knee. Because she claimed she did not have insurance, she did not see a specialist but instead retained attorneys and then sought treatment from specific orthopedic and anesthesia practices. During discovery, the YMCA “repeatedly attempted to discover the relationship” between Worley’s law firm and her treating physicians, because the YMCA suspected there was a ”cozy agreement” between the firm and the physicians.
As part of the attempts to discover whether the attorneys referred the plaintiff to the treating physicians, the YMCA asked the plaintiff in her first deposition if her attorneys had referred her to the doctors. The plaintiff’s attorneys objected claiming that the information was protected by the attorney-client privilege. In a second deposition, the YMCA asked “how [plaintiff] was referred to her doctor.” Again, plaintiff’s counsel objected to the question.
The Worley majority acknowledged “[t]hat the plaintiff was treated by a particular doctor is an underlying fact.” The majority also agreed “[t]hat the plaintiff received a referral to see a particular doctor is also an underlying fact.” Nonetheless, the court held that “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 the attorney.”
But the majority ignored the requirement that to be privileged, a communication between a lawyer and a client must be “in furtherance of the rendition of legal services to the client.” § 90.502(1)(c) Fla. Stat. As discussed by the three dissenting justices, “[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.” Thus, “communications that do not involve legal advice” should not be protected by the attorney-client privilege. The dissent thus concluded that “if a communication is a recommendation of a physician from whom someone should seek medical treatment the referral does not constitute protected legal advice.”
To make matters worse, the majority seems to have restricted broader inquiries into relationships between plaintiffs’ firms and treating doctors. Before addressing whether the attorney-client privilege barred the specific question of whether the plaintiff’s attorneys referred her to her doctors, the majority considered “whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician [was] discoverable.” The majority stated that the relationship was not discoverable because the law firm was “not a party to the litigation” and treating physicians are not hired for the purpose of the litigation.
The majority did indicate that defendants could inquire whether the doctor provided medical care to the specific plaintiff pursuant to a “Letter of Protection,” to establish bias on the part of the treating doctors. (Letters of Protection are generally used only when patients lack insurance or adequate insurance to guarantee payment.) But this narrow limitation ignores whether the law firm and the treating physicians have ongoing financial relationships. And the majority decision would seemingly prevent defendants from discovering any referral relationship if the plaintiff has sufficient medical insurance.
As explained by the dissent, “[i]f a law firm routinely refers clients to the medical provider…the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”
While the overly broad wording of the majority opinion prevents defense counsel from asking plaintiffs if they were referred to doctors by their lawyers, the decision should leave open other avenues to discover information about attorney referrals to and “cozy agreements” with treating doctors. Some of those opportunities should include:
- Intake Forms: Most new patient forms ask who referred the patient to the doctor’s office. If the plaintiff admits his attorney referred him, no privilege should apply.
- Relatives and Third Parties: Defense counsel should be able to ask if the plaintiffs’ friends or relatives know who referred plaintiffs to their doctors. In general, plaintiffs waive any attorney-client privilege if they disclose their communications with their lawyers to other people.
- Treating Physician Depositions: Nothing in the opinion should prevent defense counsel from asking a doctor if the doctor knows who referred the plaintiff for treatment. If the doctor knows it was the plaintiff’s attorney, then the privilege has been waived through disclosure.
- Prior Testimony of the Treating Doctors: If the doctors have testified in other cases in which the same attorneys represented the plaintiffs, defense counsel should still be able to inquire about those prior cases.
Thankfully, the Florida Supreme Court’s decision in Worley is an outlier. As noted by the dissent, a lawyer’s referral of a plaintiff to a doctor is not legal advice. The identity of the person who referred a patient to a doctor is an underlying fact. The narrow majority in Worley simply reached the wrong conclusion. Defense lawyers across the country should remain vigilant to prevent the mistaken ruling in Worley from spreading to other states.