Discovery Developments: Building a Double Standard For Plaintiffs’ Treating Physicians
The Fourth District released a decision in August 2014 that breaks dangerous new ground regarding discovery directed toward non-parties. In Brown v. Mittelman, No. 4D14-1748, 2014 WL 4209207 (Fla. 4th DCA Aug. 27, 2014), the court’s decision denying certiorari permits defendants to subpoena financial and billing records from plaintiffs’ treating doctors – even if there is no evidence that an attorney referred a plaintiff to a doctor. There, the order below allowed discovery directed at a non-party treating physician regarding (1) patients whom plaintiff’s attorneys previously represented, (2) patients treated under a letter of protection agreement, and (3) referrals from the plaintiff’s attorneys.
The court justified this intrusion into a non-party’s financial records by stating that “[t]he financial relationship between the treating doctor and the plaintiff’s attorneys in present and past cases creates the potential for bias and discovery of such a relationship is permissible.” So the possibility of some relationship was enough to justify forcing a treating physician to produce financial records that are related to patients with no connection to the plaintiff or case at all.
It’s hard to think of a limiting principle here. Any plaintiff who is seriously injured and who brings a lawsuit against those who caused his injuries has probably seen a doctor. But under the court’s reasoning here, the mere fact that he saw a doctor is enough to raise some possibility of prejudice, justifying the defendant’s attempt to root through the doctor’s financial records.
By holding that direct discovery into a non-party’s treating physician’s financials is fine for the mere purpose of finding out if there is a relationship to begin with, the court cast aside the boundaries imposed by Florida Rule of Civil Procedure 1.280(b)(5)(A) – which only allows parties to obtain an expert’s “financial and business records only under the most unusual or compelling circumstances.” Brown provides the exact opposite by requiring the production of financial and business records under virtually all circumstances – “Doctor, you provided medical care to this injured plaintiff? Then we’re going to need to see your financial records.”
Brown emphasized that, contrary to popular opinion, Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060 (Fla. 4th DCA 2011), did not limit discovery of a treating physician’s financial records to the specific circumstances in that case. Meanwhile, the court conveniently ignored the “most unusual and compelling circumstances” limitation recognized by Katzman v. Ranjana Corp., 90 So. 3d 873 (Fla. 4th DCA 2012), which explained the special circumstances that had justified denying relief in Rediron. In Brown, the panel hand-waves the Ranjana discussion as mere dicta.
Moreover, Brown ignores privacy considerations by expanding financial discovery to encompass any time a referral relationship could conceivably exist. Its rule may also serve to limit medical access to the people who need it most. By allowing insurance defense lawyers to dig into the financial records of any doctor who has the audacity to treat a plaintiff who was injured, doctors can get the message that they don’t need to deal with the expense and headache of intrusive financial discovery if they simply avoid treating injured plaintiffs in the first place.
Brown assures us that it is not permitting “overly-intrusive” financial discovery; instead, “more extensive financial discovery” is justified if there is some evidence of a referral relationship. How trial courts attempting to comply with its holding should define “overly intrusive” is hard to say. In any other context, such a request would be called a fishing expedition, and the court would refuse to provide the defendant a rod and reel – courts generally deny parties far-flung discovery requested only because the party believes it will stumble across something it can use.
Indeed, Brown appears to create a double standard; its holding doesn’t just conflict with the rules limiting expert discovery, but also with the Fourth District’s decisions protecting defendants’ doctors and experts. Two years ago, Smith v. Eldred, 96 So. 3d 1102 (Fla. 4th DCA 2012), held that the financial and business records of defendant’s liability expert could not be subpoenaed directly from the expert.
Or just last year, in State Farm Mutual Automobile Insurance Co. v. Verro, 123 So. 2d 599 (Fla. 4th DCA 2013), the court held that the plaintiff could not see even redacted reports of compulsory medical examination reports, related to other patients, that the defendant’s doctor had provided to State Farm or State Farm’s lawyers. Indeed, Verro is impossible to square with Brown. If the mere fact that a treating physician has provided medical services to a plaintiff raises enough “potential prejudice” to force the doctor to turn over his medical records, then how could recent compulsory medical examination reports provided by an insurance company’s favorite doctor be any less relevant to determining that doctor’s financial bias?
Fortunately, at least, Howard v. Palmer, 123 So. 3d 1171 (Fla. 4th DCA 2013), still appears to be good law. There, the court held that defendant’s statements that plaintiff contacted an attorney before receiving medical treatment were prejudicial and, coupled with other prejudicial statements, warranted a new trial. It remains to be seen whether evidence of a referral relationship will send even this limitation out the window.