We recently posted an article on defending against intrusive discovery requests seeking information on the extent of the relationship between expert witnesses, treating physicians and the plaintiff’s law firm by defense counsel in litigation. The article outlined the trend Florida courts were moving toward—a trend that does not favor those providers who take the risk of treating personal injury victims under letters of protection. Indeed, Florida courts are eviscerating the rights of those providers by subjecting them to having to respond to subpoenas served by the defense requiring the doctors to disclose vast amounts of information. Information relating to the doctor’s finances, prior patients who were clients of the plaintiff’s law firm, how many patients the doctor treats under a letter of protection and how many referrals the providers has received from the plaintiff’s law firm.
As our previous article made clear, in the past, courts have allowed such discovery in instances where there is evidence of a direct referral relationship between the treating medical provider and the attorney. Courts have stated that when the attorney told the client to seek treatment from a particular doctor or vice versa, the defense is entitled to undercover the extent of this relationship in order to show the jury that the provider may be bias and give favorable testimony to the plaintiff. Past case law made clear, however, that in order to trigger the uncovering of that information, a showing of a referral relationship was necessary.
RECENT FLORIDA CASE LAW PERMITS BROAD DISCOVERY
Now, a recent decision out of the Fourth District Court of Appeal abolishes the need to establish that referral relationship and allows the defense to embark on a fishing expedition of sorts. In Brown v. Mittelman, No.4d14-1748 (Aug 27, 2014), the plaintiff filed a negligence action against the defendant as a result of an automobile collision. During litigation, the defense subpoenaed one of the plaintiff’s treating physicians—Dr. Brown—attempting to discover information regarding letters of protection and the relationship between Dr. Brown and the plaintiff’s law firm. Although there was no direct evidence of a referral between the law firm and the provider, the court still determined that the defendant should be allowed to inquire into whether the physician had a history of treating patients that were also represented by the law firm. Even though the court in Brown noted that the Florida Rules of Civil Procedure themselves limits discovery to determining the approximation of an expert’s involvement as an expert witness and the amount of income derived from being an expert witness, the court chose to ignore the rule’s confines. Instead of putting a stop to intrusive discovery requests by the defense—requests that burdens the treating physician—the court found that whether the doctor has a “continued financial interest in treating other patients referred by a particular law firm” should be available to the jury to hear.
The Brown court essentially depleted the last of the discovery protections afforded to those doctors who treat personally injury victims and the law firm that chose to represent those client. Now, a defense attorney will be able to subject a treating physician to having to produce extensive financial documentation evidencing patients treating under letters of protection, former patients of the law firm, etc. Not only does this questionably violate privacy rights, but it places a heavy burden on providers in having to utilize man power in searching through hundreds of potential files in order to comply with a subpoena.
A THINLY VEILED ATTEMPT FOR TORT REFORM
Undoubtedly, this type of undue burden will have a chilling effect on a providers’ willingness to treat those patients who were injured as the result of the negligence of another. Not only are providers taking a risk by treating a patient under a letter of protection—a risk that they might wait years before ever being compensated, if at all—but now providers may have even further reservations based on the possibility of being subjected to having to respond to invasive, burdensome subpoenas.
The court’s rationale in allowing such discovery was that is necessary to conform to the truth-seeking function and fairness of trial to allow the jury to hear of potential bias. However, as we’ve posted about before, a jury is never allowed to hear evidence that the defendant has insurance and is represented by a defense attorney handpicked by the insurance company. If there was substantial concern over maintaining the truth-seeking function of the judicial system, then an overhaul of Florida’s non-joinder statute (the law that disallows mention of insurance in a third party action), should also be considered. It’s clear that this decision is yet another attempt to thwart plaintiffs who are injured as the result of someone else’s negligence from being able to seek the proper medical care from the best physicians. First there was the attack on medical providers with HB 587, which attempted to limit the amount that medical providers could recover for services when treating personal injury victims.
Now our courts have chosen to subject providers to burdensome discovery. It’s patently evident that these attempts are nothing more than tort reformists’ efforts to trample the rights of personal injury victims and provide defense attorneys with more ammunition to muddy the waters and distract the jury from what the real focus of the trial should be—the injuries sustained by the victim. For more information, call Dolman Law Group, 727-451-6900.
Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765