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Neil Brown v. Esther Mittelman, Case No. 4D14-1748 (Fla. 4th DCA)

In Brown, the Fourth DCA denied a petition for writ of certiorari to quash a discovery order denying a non-party doctor’s objections to a subpoena duces tecum, because a law firm’s relationship with a doctor is discoverable on the issue of bias.

The underlying case is a negligence action arising from an automobile accident. The plaintiff’s attorney referred the plaintiff to Dr. Brown who treated the plaintiff under a letter of protection. The defendant later subpoenaed the person with the most billing knowledge at Dr. Brown’s office to produce documents regarding patients previously represented by plaintiff’s attorneys. The doctor objected to the discovery arguing Rule 1.280(b)(5) prohibited the discovery and that the doctor’s relationship with co-counsel for the plaintiff is not discoverable because that firm did not directly refer the plaintiff to the doctor.

The Fourth DCA noted that a “party may attack the credibility of a witness by exposing a potential bias.” Discovery of the financial relationship between a treating doctor and the plaintiff’s attorneys in present and past cases is permissible because there is the potential for bias. The Fourth DCA found that Rule 1.280(b)(5) limits discovery to an approximation of the portion of an expert’s involvement as an expert witness. The court found that Rule 1.280(b)(5) “neither addresses nor circumscribes discovery of the financial relationship at issue in Brown.

The Fourth DCA further noted that whether the law firm directly referred the plaintiff to the treating physician does not determine whether discovery of the doctor/law firm relationship is allowed. “A doctor’s referral arrangements with a law firm in other cases is a proper source for impeachment.” The Fourth DCA, however, also noted that, like retained experts, treating physicians should be protected from overly-instrusive financial discovery. “Trial courts have broad discretion to balance the interests involved and generally should not permit extensive discovery of a treating physician’s finances. The Fourth DCA found that the requested discovery in Brown was limited to a reasonable time frame and was not overly intrusive.

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