Supreme Court Says: Whether Lawyer Referred Client to Doctor for Treatment Cannot Be Discovered in Litigation

Pink Sunrise

On April 13, in a 4-3 decision, the Florida Supreme Court ruled that the attorney client privilege protects a party, from being required to disclose that their attorney referred them to a physician for treatment.  The case involved a woman named Heather Worley who fell in the parking lot of a Central Florida YMCA (“Y”) facility.  Ms. Worley went to the emergency room at Florida Hospital East and was instructed to see a specialist.  She didn’t go to a specialist for a month or two thereafter because, she said, she couldn’t afford it. Ms. Worley then retained the law firm of Morgan & Morgan and received medical treatment from Sea Spine Orthopedic Institute, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia under what are called letters of protection (“LOPs”). A LOP is an agreement by an attorney and client to pay the physician for treatment to the client from the proceeds of any recovery obtained for the client.

Ms.  Worley and her legal counsel sued the Y.  Defense counsel for the Y repeatedly, and in a variety of ways, attempted to discover whether Ms. Worley had been referred to her treating health care providers by her law firm.  Morgan & Morgan objected to these efforts but eventually the judge overruled the objections and required them to produce information regarding their referral relationship with the treating health care providers.  An appeal was taken to the 5th District Court of Appeals (“5th DCA”), which includes Brevard, Citrus, Flagler, Hernando, Lake, Marion, Orange, Osceola, Putnam, Seminole, St. Johns, Sumter and Volusia counties.

The 5th DCA reversed the decision of the trial court judge, but certified that their opinion was in conflict with an opinion of another district court. The conflict between the district courts gave the Supreme Court jurisdiction to consider the matter.

The Supreme Court majority opinion, written by Justice Quince, states that the referral of a client by an attorney to a physician “implicates a confidential communication between the attorney and the client and is therefore protected”. The dissenting opinion, written by Justice Polston, states: “A lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services”. The dissenting opinion also noted that discovery on whether a witness is biased is relevant and a physician who has a financial interest in referrals from a law firm may be biased.  Sea Spine Orthopedic Institute conceded that their practice is solely based on LOPs i.e. referrals from attorneys. Information regarding the relationship between a non-treating expert physician witness and a law firm has been, and remains, discoverable.

So, as it stands, a physician who receives a referral of a patient from an attorney cannot be forced to disclose the source of the referral over the objection of the patient.  If the patient were to waive the attorney client privilege then that information would be discoverable.  The privilege belongs to the client, not the physician.  A non-treating expert physician, however, can be required to disclose information pertaining to a referral relationship with an attorney.