Referral To Doctor Is Protected By Attorney-Client PrivilegePersonal Injury
In the case of Worley v. Central Florida Young Men’s Christian Ass’n, Inc. (YMCA), Case Number SC15-1086, the Florida Supreme Court held that a referral of a client from a lawyer to a doctor is protected by the attorney-client privilege and does not have to be disclosed.
Facts Of The Case
Heather Worley fell in the parking lot of the YMCA’s parking lot. She went to the ER two times with complaints of right knee pain and was advised to see a specialist. Worley claims that she did not have enough money or have health insurance to see a specialist. After retaining counsel, she was able to see three different doctors specializing in orthopedics.
After a lawsuit was filed, the YMCA sought to get discovery on the relationship between Ms. Worley’s law firm and the treating physicians. Ms. Worley’s attorney objected to questions about referrals to doctors as protected by attorney-client privilege. Despite the objection, the trial court ordered the law firm to produce the information sought. Further, the law firm involved (Morgan & Morgan, P.A.) did not have any such records of what referrals had been made and that any search of hard copies of files would cost $94,010.00.
Legal Analysis By The Court
The Florida Supreme Court is to be applauded for doing the right thing by safeguarding the right to private and confidential communications with counsel. In contrast to other court decisions on closely related matters, the Court recognized that the relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and its retained expert. (See Brown v. Mittelman, 152 So. 3d 602 (Fla. 4th DCA 2014); Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So 3d 200 (Fl.a 4th DCA 2012); Lytal, Reiter, Smith, Ivey & Fronrath, LLP v. Malay, 133 So. 3d 1178 (Fla. 4th DCA 2014)).
The most important considerations by the Court were:
- The law firm is not a party to the lawsuit itself whereas insurance companies hire experts for the purpose of litigation;
- The evidence code already allows any party to attack the credibility of a witness because of bias (see section 90.608(2), Fla. Stat.). Therefore, the fact of a “Letter of Protection” can be introduced into evidence to argue that the doctor’s opinion is biased because of their stake in the outcome of the case.
In the Worley case, each of the doctors involved was issued a Letter of Protection from the law firm. Therefore, it did not matter whether the law firm referred the client to the doctor or whether the client arrived at the doctor’s office by any other means.
The attorney-client privilege is found in section 90.502(2), Fla. Stat. and provides protection to virtually all communications between attorney and client. The only exceptions are mandatory such as reporting of child abuse. However, as mentioned by the Court on many occasions, the purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Therefore, communications between attorney and client are “deemed worthy of maximum legal protection” according to the Court.
How Does This Apply To Your Case?
If you are a plaintiff in a lawsuit, you have the right to ask your attorney about where you should obtain your medical treatment. You further have a right to have a full discussion with your attorney about how your medical treatment is going to be paid for and what happens if you cannot pay your medical bills. Many personal injury attorneys have a wealth of knowledge about where to go and for what conditions. They also have the experience in dealing with medical providers to know that certain medical providers won’t accept certain kinds of health insurance and that it may be possible that the only way to get treatment after an accident is the “letter of protection.”
If you have a discussion with your attorney about where to receive medical treatment after your injury, you are not required to disclose (and should not disclose) the fact that you received legal advice from an attorney. This is why you hired an attorney in the first place. Further, if you answer a question where the answer is protected by attorney-client privilege, then you are waiving the privilege.