Katzman Discovery: Where Do We Stand Today?

Katzman Discovery: Where Do We Stand Today? Up until a few years ago, a medical professional could expect that his business documents and financial dealings would remain private information. It was almost always deemed irrelevant and completely unnecessary during the discovery phase of a lawsuit. Recently however, case law has altered our understanding of what can be produced during discovery as it pertains to medical professionals. What was once deemed “non-discoverable” because it was intrusive and burdensome has now become accessible. It is important as a client that you understand these recent developments and how the law has changed. Doing so may save your wallet in the long run. What is a “hybrid witness”? In a lawsuit, keeping costs down for the client should always be a top priority. Attorneys strive to keep these costs down, and in an attempt to do so often times rely on a medical “hybrid witness”. A “hybrid witness” is a medical professional who not only serves as the plaintiff's treating physician, but also testifies at trial. These physicians are preferred because they can give insight into a plaintiff's medical history and seem to do well in front of a jury. An example would be a doctor to whom plaintiff counsel directs his/her clients for treatment, to whom other clients have been sent in the past, and with whom the plaintiff undertakes a course of treatment.[1] What is the “discovery process”? In a lawsuit, both the plaintiff and defendant each have an opportunity to “discover” what each side knows about what happened. This is the formal process of exchanging information between the parties about the witnesses and evidence they'll present at trial. Discovery enables the parties to know before the trial begins what evidence may be presented. It's designed to prevent "trial by ambush," where one side doesn't learn of the other side's evidence or witnesses until the trial, when there's no time to obtain answering evidence.[2] Therefore, when you visit a “hybrid witness”, information involving that witness's involvement in your case, including the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness may be accessible by the opposing party. What is the problem with using “hybrid witnesses” at trial? Under the new case law, as you will see later in this article, it can get expensive. Florida courts have expanded the scope of discovery when it comes to “hybrid witnesses”. What does that mean for you? It means that you could be paying much more during the discovery process if the hybrid witness your attorney decides to use is recommending an allegedly unnecessary and costly procedure with greater frequency in litigation cases, or is allegedly overcharging for the medical services at issue in the lawsuit. That is why it is important that you ensure that the attorney whom you are working for has a firm understanding of the types of procedures you will be undergoing. An attorney who is not paying attention could significantly impact the amount you have to pay down the road. What do statutes and case law tell us about the scope of “hybrid witness” discovery? Florida Rule of Civil Procedure 1.280, which governs discovery, tells us what may be accessible during the discovery process. When it comes to experts, the rule says the following may be obtained, “An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services. An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.”[3] Therefore, only under the most unusual or compelling circumstances should a court request financial or business records. It should not be something which is routinely requested on a regular basis. To understand how this law developed it is important to understand the case law which helped formulate it. In the state of Florida, there are four recent cases which have explained and shaped the scope of discovery allowed when it comes to hybrid witnesses. We will begin with Elkins v. Sykeni, 672 So.2d 517 (Fla. 1996). In Elkins, the district court set forth the following eight criteria, which were approved by the Florida Supreme Court, to be followed in seeking financial information from opposing medical experts:

1. The medical expert may be deposed either orally or by written deposition.
2. The expert may be asked as to the pending case, what he or she has been hired to do and what the compensation is to be.
3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants, or some percentage of each?
4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service as an expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended, or percentage of income earned from that source, or the approximate number of IME's that he or she performs in one year. The expert need not answer how much money he or she earns as an expert or how much the expert's total annual income is.
5. The expert may be required to identify specifically each case in which he or she has actually testified, whether by deposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time may be inquired into under some circumstances.
6. The production of the expert's business records, files, and 1099's may be ordered produced only upon the most unusual or compelling circumstance.
7. The patient's privacy must be observed.
8. An expert may not be compelled to compile or produce nonexistent documents. [4]

The Supreme Court of Florida explained that these criteria were adopted, “in an effort to prevent the annoyance, embarrassment, oppression, undue burden, or expense, claimed on behalf of medical experts.”[5] The opinion in Elkins was followed up in 1999 with Allstate vs. Boecher, 733 So.2d 993 (Fla. 1999). The issue in Boecher focused on whether Rule 1.280 and Elkins prevented a party from obtaining discovery regarding the extent of the opponent's relationship with the expert witness from the party itself. The court held that the concerns that presented themselves in Elkins did not exist because the discovery in Boecher sought information relating to a party's financial relationship with the expert witness and the amount of money that the party had paid to an expert. The court found that this information was relevant to demonstrating financial bias and is therefore discoverable. [6] Then in 2011, Florida courts dropped a bombshell and changed the landscape when it comes to the scope of physician discovery.   In Katzman v. Rediron Fabrication, Inc. 76 So.3d 1060 (Fla. 4th DCA 2011), the Fourth District Court of Appeals allowed intrusive defense discovery where the plaintiff counsel had referred the client to a medical witness for a procedure.[7] The court, in explaining its position, stated, “In this case, the discovery that is sought is not relevant merely to show that the witness may be biased based on an ongoing financial relationship with a party or lawyer. We agree that Elkins discovery should generally provide sufficient discovery into such financial bias. The discovery here is relevant to a discrete issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit. The limited intrusion into the financial affairs of the doctor in this case is justified by the need to discover case-specific information relevant to substantive issues in the litigation, i.e., the reasonableness of the cost and necessity of the procedure. In our view, it meets the requirement of “unusual and compelling circumstances.”[8] Accordingly, the court allowed the accompanying inquiry into the financial affairs of Dr. Katzman. What does this mean moving forward? This means that if you have an attorney who does not understand these recent developments, you may be paying more during the discovery phase of a lawsuit than you ever dreamed. An attorney should be in constant communication with the doctor who is treating you, he should be aware of the types of procedures which are being performed, and he should always do research to see if the treatment which is recommended by the treating physician is necessary. As a client, saving you money should be your auto accident attorney's number one priority. Attorneys who do not monitor their patient's treatment run the risk that the doctor will perform unnecessary treatment, costing you more money not only on the procedure, but also during the discovery phase of litigation. The attorneys at Dolman Law Group Accident Injury Lawyers, PA always monitor our client's treatment process. We are in constant communication with the treating physicians to ensure not only that you are treated, but that you are treated appropriately.  The attorneys at the Dolman Law Group Accident Injury Lawyers, PA take pride in being personally involved in the best interests of our clients. If you have been injured and need professional representation, please do not hesitate to call our office at 727-451-6900 today. Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 727-451-6900 References: [2] https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery.html [3] http://phonl.com/fl_law/rules/frcp/frcp1280.htm [4] Elkins v. Sykeni, 672 So. 2d 517 (Fla. 1996) [5] Id. at 521 [6] Defending Against Intrusive Discovery by the Defense in Florida Personal Injury Cases [7] Id. [8] Katzman v. Rediron Fabrication, Inc. 76 So. 3d 1060, 1064 (Fla. 4th DCA 2011)