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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.



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