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Heather Worley v. Central Florida Young Men’s Christian, et al., Case No. 5D14-3895 (5th DCA)

In Worley, the Fifth DCA denied a petition for writ of certiorari seeking to quash the trial court’s order requiring the plaintiff to produce information relating to the relationship between her treating physicians and her attorneys, Morgan & Morgan. The plaintiff brought suit after a slip and fall at the YMCA. A couple of months after the incident, and after hiring attorneys, the plaintiff went to various doctors for treatment. In deposition, the YMCA asked the plaintiff how she came to see the doctors who treated her, and if she was referred to any doctors by her attorneys. The plaintiff’s counsel objected based on attorney-client privilege. The YMCA later propounded written discovery, including Boecher interrogatories, requesting information pertaining to the relationship between the plaintiff’s attorneys and her treating physicians. When the treating physicians were deposed, all stated that they did not know who referred the plaintiff to them. Eventually, the trial court ordered the plaintiff to produce copies of all documents reflecting any formal or informal agreements or arrangements regarding billing or referral arrangements between the plaintiff’s attorneys and the treating physicians, and the names of all cases where a client of the plaintiff’s attorneys was referred directly or indirectly by the plaintiff’s attorneys to any of the treating physicians. The trial court denied a motion for reconsideration by the plaintiff, and this appeal followed.

On appeal, the plaintiff argued the trial court’s order was improper on several grounds. The plaintiff’s first argument was that the trial court’s order required production of information protected by the attorney-client privilege. The Fifth DCA found that the plaintiff’s first argument made a prima facie showing of irreparable harm, and so the court accepted jurisdiction. The Fifth DCA noted that in Florida, “it is well established that the financial relationship between the law firm and the treating physician is not privileged and is relevant to show potential bias.” “However, to protect the privacy interests of the treating physician and their former patients, before overly-intrusive financial bias information concerning a treating physician’s relationship with a plaintiff’s law firm is discoverable, there must be some evidence of a referral relationship.” To establish that a referral occurred, discovery should first be sought from the party, the treating physician or some other witness, not the party’s counsel. The Fifth DCA found that the YMCA had exhausted efforts to discover whether a referral took place, and therefore, had no choice but to ask the plaintiff directly whether her attorney had referred her to the treating physicians.

In explaining its ruling, the Fifth DCA minimized the Second DCA’s opinion in Burt v. Government Employees Insurance, Co., in which the court held that the question, did counsel refer the party to a particular physician, sought discovery of confidential communications constituting attorney’s advice regarding the lawsuit. The Fifth DCA stated that the broad ruling in Burt has been called into doubt by subsequent case law approving discovery pertaining to the financial relationship between a plaintiff’s treating physician and his or her lawyers. Therefore, having found that the YMCA exhausted all other avenues, the YMCA should have been permitted to ask the plaintiff if she was referred to her treating physicians by her counsel. In addition, the Fifth DCA found that the trial court’s order was consistent with Boecher. The Fifth DCA found that the plaintiff has demonstrated a good faith basis to suspect a referral relationship exists, and therefore, documents reflecting that relationship should be produced.

The Fifth DCA refused to take jurisdiction over the plaintiff’s remaining arguments, finding that the plaintiff had not shown that those arguments caused irreparable harm or constitute a departure from the essential requirements of law.

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