Evidence Of Relationship Between Plaintiff's Law Firm And Treating Physicians Is Protected Under Attorney-Client Privilege

Evidence Of Relationship Between Plaintiff’s Law Firm And Treating Physicians Is Protected Under Attorney-Client Privilege

Personal Injury

In the case of Frank Bellezza v. James Menendez and Crary Buchanan, P.A., Case Number 4D17-3277 (Fla. 4th DCA March 6, 2019), Florida’s Fourth DCA held that “while letters of protection may be admitted to establish bias, any further inquiry regarding the ‘cozy agreement’ between a law firm and a treating physician is disallowed.”

Facts Of This Case

This case presents some unusual facts. The plaintiff was walking his bicycle when a law firm employee struck him while driving a car owned by the law firm itself. The plaintiff sued not only the driver but also the law firm as the owner of the vehicle.

While that is no so unusual, what is unusual is the fact that the trial judge demanded testimony from the plaintiff’s attorney at trial and compelled discovery on 1) all payments by the plaintiff’s attorney’s law firm to the treating physicians over a course of 5 years and 2) disclosure of the letters of protection between the plaintiff attorney’s law firm and the treating physicians.

The plaintiff claimed $184,976 in medical expenses at trial and that he had been recommended for surgery in the future.

The jury found the driver was 57 and 1/2 percent responsible for the collision the plaintiff to be 42 and 1/2 percent responsible. Damages were determined to be $20,9156.33.

So Where Did Things Go Wrong?

In Worley v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017), the fact of a referral of the plaintiff to a physician for medical treatment was held to be protected by the attorney-client privilege. As such, only the letter of protection itself may be admitted into evidence in order for the defense to argue that the doctor’s opinion is biased in that the doctor shares a common interest with the plaintiff in the outcome of the case. In other words, the doctor only gets paid if the jury awards money to the plaintiff.

However, the Worley case shut down prior case law that allowed discovery into whether there was a “referral relationship” between a claimant’s law firm and a claimant’s treating physician as well as the amount of money that had been paid over a period of time. This information is protected by the attorney-client privilege in each of those prior cases in which a claimant was referred to a particular doctor for treatment and is not supposed to be discoverable, let alone admissible, in a Florida personal injury lawsuit.

Therefore, the discovery of this information should not have been allowed. Likewise, if the information never should have been discovered, then it should not have been admissible at trial and the plaintiff’s attorney should not have been compelled to offer testimony.

To Add To The Hypocrisy…

It should be noted from an outsider’s perspective that there is an element of double-speak to the insurance industry. In the case, it appears that the plaintiff made a “fall back” argument that if the plaintiff’s law firm had to disclose its referrals to physicians, then the defense law firm should have to do the same.

It is interesting to note that the Fourth DCA said that “[w]e agree…” but held that it is unnecessary to address the matter further because this subject is protected by attorney-client privilege. When the Fourth DCA says that “we agree…”, it appears that they are agreeing with the hypocrisy of the defense argument rather than agreeing with an overall general concept of fairness.