News & Insights

Recent Posts

Covid-19: Assessing the Legal Risk of Infectious Diseases

WSHB Employer Alert: FFCRA and DOL Regulations 4.2.20

Employment Practices Consultation & COVID-19

It’s a No-Win Situation: The Perils Facing Hospitals Due to the Coronavirus

COVID-19 Employer Alert: Summary of the CARES Act

COVID-19: New York Malpractice Law Alert

COVID-19 Employer Alert: Enactment of Families First Coronavirus Response Act (FFCRA)

WSHB Co-Founder Stephen Henning to Announce the Winner of CLM's 2020 Outside Counsel Professional of the Year Award

WSHB Partner Robert Hellner Shares Mediation Tactics at CLM’s 2020 Annual Conference

Risk Transfer and Contractual Indemnification – Who Gets Left Holding the Bag?

New Developments in Challenging Certificates of Merit — Seeking Dismissal for Failure to Concurrently File Certificate with the Original Petition

Seven Habits that Define a Highly Effective Claims Team

Social Media Do's and Don'ts

WSHB Partner Kelly Waters Named to NJBIZ's 2020 Best Fifty Women in Business List

WSHB Names Andrew S. Kessler as Managing Partner of the Firm's Philadelphia Office

WSHB Employment Alert: California Law Banning Arbitration Agreements Temporarily on Hold

Sam McDermott on the Dos and Don’ts of Construction Project Termination

Full Disclosure! Insurer Beware: Colorado’s New Automobile Policy Disclosure Law Has Teeth!

Andrew S. Kessler Named Legal Counsel for Northeast Community Center for Behavioral Health

WSHB Elevates Ten Partners to Defined Equity Status

Eleven WSHB Attorneys Elected Into Partnership

Eighteen Attorneys Elected to WSHB Senior Counsel

Supreme Court Allows Suit Over Website Accessibility

Strategies for Defending Legionella and Mold Claims

Residential Revolution

Time Limit Demand Issues Arrive in North Carolina

Temp Agency Absolved of Liability in Hotly Contested Action

Alternative Fee Agreements and Construction Issues: Oil and Water or Perfect Pairing!?

WSHB's Graham Miller Helps Demystify Construction Claims in the Pacific Northwest

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

Leaders in an Emerging Nationwide Trend: Orange County Courts to Pilot New Electronic Evidence Portal

Jury Returns Defense Verdict in Habitability Case

Florida Court Rules Contractor Waived Right to Arbitration

Illinois Supreme Court Addresses Loss of Chance & Informed Consent Jury Instructions in Medical Malpractice Suit

Defense Unable to Explore Kickbacks Between Plaintiff Lawyer and Treating Docs

November 5, 2021

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 applied to protect a defendant’s insurer that is not a party to the litigation from having to disclose its financial relationship with experts retained for purposes of litigation, including those that perform comprehensive medical examinations under Fla. Rule of Civ. Pro. 1.360?” The court decided that although the law’s application had a disparate impact on the parties, it was beyond its purview to expand the provision to apply to both sides equally.

Similarly in Younkin, the plaintiff requested information regarding the financial relationship between the defendant’s law firm and the defense’s medical expert. The defense moved for a protective order, but the trial court denied its motion stating that the controlling precedent of Worley and Dodgen prevented it from blocking plaintiff’s request. The protection only existed for plaintiffs seeking to block defendants from obtaining that information.

The Worley Precedent

In the Worley case, the defendant tried to obtain information through the discovery process to establish a relationship between the plaintiff attorneys and the treating physicians. The court held that the attorney client privilege protects a party from being required to disclose the details around whether or not the attorney referred that party to a particular medical professional for treatment. Notably, the court expanded this and said that a law firm is also protected by attorney client privilege and does not have to disclose any documents relating to a referral relationship between the firm and a doctor, or other medical professional. The Worley court stated that, “The relationship between a law firm and a plaintiff’s treating physician isn’t analogous to the relationship between a party and a retained expert.” It further pointed out that experts are hired expressly for the purpose of litigation and doctors are hired for the purpose of treating plaintiff injuries and ailments. It went on to say that the credibility of the treating doctor could be attacked without revealing the existence of a referral relationship between the law firm and the doctor.

In Dodgen and following in Younkin, the defense argued that Worley must apply equally to plaintiffs and defendants. The Fourth DCA rejected this premise and determined that Worley did not afford protections to the defense, but it also noted that this may in fact have a disparate impact on the defense side. According to the Fourth DCA and ultimately the Florida Supreme Court, Worley was not broadly written so as to allow courts to expand its meaning and rule to defendants.

The trial court’s order permitting discovery was permissible and did not contradict the current requirements of the law as established in Worley and other relevant case law in this area. Therefore, the Florida Supreme Court approved the conclusion reached by the Fourth District Court of Appeals.

Key Takeaways:

  • Defense counsel does not have the same access to discover information regarding the financial relationship between plaintiff counsel and/or its insurer and the treating physician.
  • This lack of access protects plaintiff counsel who choose to engage in unethical behaviors such as compensating physicians to diagnosis medical issues with the aim to increase dollars recovered in litigation.
  • With the case law in place, the Florida Supreme Court refuses to expand the bounds of Worley to include the defense. This does not mean that future challenges will be foreclosed; rather, it means that future challenges will need to evaluate the impact of these rulings in order to carefully thread the needle for arguments that lie ahead.

 

PRINT

Privacy Policy      |      Site Map

© 2021 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required