Attorney-Client Privilege Works Against Defense Counsel Seeking To Establish Financial Relationship Between Plaintiff Lawyers And Treating Physician

• Published date: 16 November 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Wood, Smith, Henning & Berman LLP
• Author: Mr Ryan D. Schoeb

Defense attorneys and their clients have long held concerns that unethical plaintiff attorneys are toeing the line or even completely crossing it by paying off treating physicians to provide the best diagnosis or treatment recommendation not only for the patient, but also to maximize the dollars recovered through litigation. This is why defense counsel has pushed in recent years for equal access in discovery to determine the financial relationship between plaintiff counsel and the treating physician.

After two significant decisions out of the Florida Supreme Court recently, defense attorneys have few options on this issue. In two opinions, Dodgen v. Grijalva, 281 So.3d 490 (Fla. Dist, Ct. of Appeals 2019), and Younkin v. Blackwelder, Case No. 5D18-3548 (Fla. Dist. Ct. App. Feb 22, 2019), the court reviewed the applicability of Worley v. Central Florida Young Men's Christian Association, Inc., 163 So.3d 1240 (Fla. 5th DCA 2015), which stated that plaintiff and defense attorneys are not treated the same as to this issue.

Ultimately, it appears that the Florida Supreme Court has approved of the disparate treatment of the defense in favor of the Plaintiff and ruled that while the defense may not discover the financial relationship between the plaintiff attorney and the plaintiff's treating physician, the plaintiff can gather discovery regarding the relationship of the defense and their experts

Why This Case is Important

Worley found that the relationship between plaintiff's counsel and the treating physicians they refer their clients to is not discoverable. Clearly, the defense thinking this rule would be applied in a fair manner argued that it applied to the defense as well. However, the court in Dodgen and Younkin found that Worley only applies to plaintiffs and not the defense. Ultimately, on the issue of whether the attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a physician for treatment. the court refused to expand these provisions to defendants, their insurers, or their experts.

Dodgen & Younkin

The Dodgen litigation involved an auto accident in which the plaintiff sued the defendant for negligence. As part of the discovery process, the plaintiff sought to discover the financial relationship between Dodgen's nonparty insurer and his expert witness. The Fourth District Court of Appeals heard the case and certified the following question, "Should the decision in Worley be...