EMAIL TO A FRIEND COMMENT

 

Attorney-Client Privilege Applies to Attorney Referrals of Client to Physician


A woman fell in a parking lot. The woman went to the emergency room (ER) twice. The ER eventually advised the woman to see a specialist concerning pain in her right knee. The woman did not go to a specialist because the woman did not have enough money or any health insurance.

 

After the woman retained counsel, various doctors from three health care facilities treated the woman. The woman’s counsel provided each health care facility with a letter of protection, a document sent by an attorney on a client’s behalf to a health-care provider when the client needs medical treatment, but does not have insurance. Generally, a letter of protection states that the client is involved in a court case and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider’s bill from the proceeds of a settlement or award. Typically, if the client does not obtain a favorable recovery, the client is still liable to pay the provider’s bills.

 

The woman sued the owner of the parking lot for negligence. The complaint sought to recover damages, including the costs of the woman’s treatment from the three health care facilities.

 

During discovery, in an attempt to gather evidence to impeach the credibility of the treating physicians on the basis of bias, the parking lot owner repeatedly attempted to discover the relationship between the woman’s counsel and the treating physicians. During the woman’s initial deposition, the parking lot owner asked if the woman was referred to the specialists by counsel. The woman’s counsel objected on the ground of attorney-client privilege.

 

An employee of one of the health care providers testified during a deposition that the health care provider’s entire practice was based on patients treated pursuant to letters of protection.

 

The parking lot owner then propounded interrogatories in an effort to establish the existence of a referral relationship between the woman’s attorney and treating physician. The woman’s attorney argued that the requests were overbroad, vague, unduly and financially burdensome, irrelevant, and in violation of allowable discovery. The woman’s attorney also contended that the attorney did not maintain information for treating physicians. At a hearing concerning the objections, the Orange County Circuit Court sustained the woman’s objection to the deposition question regarding whether she was referred to the doctors by her attorneys and did not address her objections to the parking lot owner’s other outstanding discovery requests.

 

At a second deposition, the parking lot owner against asked the woman how she was referred to the treating physicians. The woman’s attorney objected on the ground of attorney-client privilege. The parking lot owner filed a motion to compel. The trial court held a second hearing and ordered the woman to produce any documents reflecting agreements regarding the billing for patients or any referral of a client by an attorney at the woman’s attorney’s practice to any of the woman’s health care providers or practice groups. Additionally, the trial court ordered the woman to produce the names of any cases in which a client was referred by any attorney in the woman’s attorney’s practice to any of the woman’s health care providers or practice groups. The trial court ordered that if the health care provider did not have responsive documents, then the law practice was to produce them.

 

The woman filed a motion for reconsideration of the trial court’s discovery order. The motion argued that the information was protected by attorney-client privilege and that compliance would be overly burdensome, if not impossible. The trial court denied the motion.

 

The Fifth District Court of Appeal denied the woman’s petition for writ of certiorari. The appellate court held that it was appropriate for the parking lot owner to ask the woman if she was referred to the relevant treating physicians by her counsel or her counsel’s firm. The appellate court certified a conflict with the Second District Court of Appeal’s decision in Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA, 1992) to the extent that it held that the disclosure of a referral of a client by an attorney to a health care provider is always protected by the attorney-client privilege.

 

The Supreme Court of Florida reversed. The court held that the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment.

 

The attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. The court found that the relationship between the law firm and a plaintiff’s treating physician was not analogous to the relationship between a party and its retained expert. The question of whether a plaintiff’s attorney referred him or her to a doctor for treatment implicated a confidential communication between the attorney and the client and was therefore protected. The interrogatories requesting production of billing agreements between the woman’s attorney’s law firm and her treating physicians and information from cases in which the law firm referred other clients to the physicians required the production of privileged materials. The court also found that 200 hours and over $90,000 in costs to discover the collateral issue of bias in a case where the damages sought total $66,000 was unduly burdensome.

 

The Supreme Court of Florida reversed the trial court’s discovery order requiring the woman to produce billing agreements between the law firm and treating physicians and information from cases in which the firm referred other clients to the physicians.

 

See: Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 2017 WL 1366126 (Fla., April 13, 2017) (not designated for publication).

 

See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure

 

 

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