On May 15, 2015, in Worley v. Central Florida Young Men’s Christian Ass’n, 163 So. 3d 1240 (Fla. 5th DCA 2015), Florida’s Fifth District Court of Appeal held that information regarding a law firm’s referral of its client to a physician was discoverable. Briefing of this case in the Florida Supreme Court was completed on February 10, 2016 and a decision is pending. You can view the Fifth District’s opinion here. You can view the Supreme Court docket here.
After Heather Worley fell in a YMCA parking lot, she treated at a local hospital emergency room and was told to see a specialist for some of her injuries. After she retained the law firm of Morgan & Morgan, she treated with various health care providers. Morgan & Morgan, on behalf of Worley, sued the YMCA for damages.
During discovery, Morgan & Morgan opposed the YMCA’s attempts to learn how Worley became a patient of the health care providers, citing the attorney-client privilege. Over Worley’s objection, the trial court ordered Worley to produce: 1) complete copies of all documents reflecting agreements regarding the billing for patients or any referral of a client by any attorney employed by or affiliated with Morgan & Morgan to any of the subject providers, and vice versa; and 2) the names of all cases where a client was referred by an attorney employed by or affiliated with Morgan & Morgan to any of the subject providers, and vice versa. Although not in its written order, the trial court stated that if the subject providers did not have the requested information, then Morgan & Morgan was to produce it.
Worley petitioned the Fifth District for a writ of certiorari, arguing that the trial court’s order: 1) required production of information protected by attorney-client privilege; (2) required her to produce documents that did not exist; (3) required Morgan & Morgan, a nonparty, to produce the information; (4) required Worley or Morgan & Morgan to engage in an unduly and financially burdensome production; (5) required Morgan & Morgan to incur all of the costs associated with the production of the ordered discovery; and (6) expanded the scope of bias-related discovery that is otherwise permitted.
The Fifth District held that with regard to Worley’s first argument that the information regarding a law firm’s referral of its client to a physician is protected by the attorney-client privilege, the financial relationship between a law firm and a treating physician is not privileged and is relevant to show potential bias. However, before this information is discoverable, the district court noted that there must be some evidence of a referral relationship. In this case, the district court found that such evidence existed, and the YMCA exhausted all avenues to learn how Worley was referred to the subject providers before it asked Worley.
The court also stated that the limited discovery sought by the YMCA concerned only the existence of a referral relationship between Morgan & Morgan and the subject providers, unlike discovery seeking detailed financial and business records that could reveal confidential information protected by the doctor-patient relationship. Such information is relevant, not privileged.
As for Worley’s remaining arguments, the district court stated that Worley did not make the prima facie showing of irreparable harm or of a departure from the essential requirements of law for the writ to issue. As to Worley’s second argument that she had to produce nonexistent documents, the district court said that it interpreted the trial order as meaning if any documents existed, Worley was to produce them. As to the third argument that the trial order required a non-party to produce the information, the court stated that a law firm may be the primary source of discovery, when a doctor has no records or provides nebulous testimony about past referrals. As to Worley’s fourth and fifth arguments concerning the costs to comply with the trial order, the court stated that nothing prevented Worley from seeking reasonable compensation for those costs. As to Worley’s last argument, the court said that the trial order did not require production of any records regarding money exchanged between Morgan & Morgan and the subject providers. Rather, the trial order required Worley to produce information regarding the referral relationship which, in general, defense attorneys are entitled to seek.
The court denied Worley’s petition, but certified conflict with the Second District’s decision in Burt v. Government Employees Insurance Co., which held that the disclosure of a referral of a client by an attorney to a healthcare provider is always protected by the attorney-client privilege.