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April 14, 2017 | Blog Post| Supreme Court says lawyer's referral of client to a doctor for treatment is attorney-client privileged communication, and out of bounds in discovery

The Florida Supreme Court declared that the attorney-client privilege shielded a motor vehicle accident plaintiff from being required to disclose that her attorney had referred her to a doctor for treatment.  In Worley v. Central Fla. Young Men’s Christian Ass’n, Inc., SC15-1086 (Fla. April 13, 2017), the supreme court disapproved a decision of the Fifth District Court of Appeal and pulled back from the expansive readings of its landmark decisions in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), and Elkins v. Syken, 672 So. 2d 517 (Fla. 1996.)  Justice Quince, writing the majority 4-3 decision, said those earlier supreme court cases were different, because they involved a party’s financial relationship with experts, and treating doctors are not the same as the experts in those cases. Treating physicians acquire their expert knowledge not for the purpose of litigation, “but rather simply in the course of attempting to make their patients well.” 

The plaintiff objected to the defendant’s requests to disclose whether the plaintiff saw her treating physician at her attorneys request.  The Fifth District ruled she had to disclose it, but the supreme court majority disagreed.  The answer to that question was a protected attorney-client communication – no disclosure required.

The supreme court did recognize that Florida law still allows a party to attack a witness’ credibility based on “bias,” meaning here that the treating physician has a stake in the outcome of the litigation and might give biased opinions.  Letters of protection (where doctor defers payment for treatment until conclusion of the case), and medical bills that are higher than normal, can be presented to dispute the physician’s testimony regarding the reasonableness of the claim to damages.  

Anthony J. Russo

Anthony is a partner in our Tampa office; he is a Florida Board Certified Lawyer practicing in all of Florida’s appellate courts.

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