Heather Worley petitions this court for a writ of certiorari to quash the trial court's order requiring her to produce information pertaining to the relationship between her treating physicians and her attorneys below, Morgan & Morgan, P.A. For the following reasons, we deny the petition.
During the discovery process of this relatively routine trip-and-fall case, Morgan & Morgan has tenaciously opposed all attempts by the Respondent, Central Florida Young Men's Christian Association, Inc. ("YMCA"), to learn how Worley became a patient of certain medical care providers. After Worley fell in YMCA's parking lot, she twice went to the emergency room of Florida Hospital East, where she was eventually advised to see a specialist concerning pain in her right knee. However, according to Worley, she did not go to a specialist for a month or two after the accident because she did not have enough money or any health insurance. Instead, she "started seeking out representation." After Worley retained Morgan & Morgan, various doctors from Sea Spine Orthopedic Institute, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia treated Worley. Morgan & Morgan subsequently filed a negligence suit against YMCA on behalf of Worley, seeking to recover damages, including the costs of her treatment from those healthcare providers.
During Worley's deposition, YMCA asked her, generally, how she came to see the specialists who treated her and, specifically, if she was referred to a doctor by her attorneys. Worley's counsel objected to both questions on the ground of attorney-client privilege. Following the deposition, on December 4, 2012, YMCA propounded to Worley three sets of Boecher interrogatories and a supplemental request to produce, attempting to ascertain the extent of the relationship between Morgan & Morgan and Sea Spine, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia.
YMCA's Boecher interrogatories were directed to specific doctors employed by Sea Spine, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia that treated Worley and who were expected to testify at trial. In particular, YMCA sought the names of all cases for the last three years in which the doctor or another doctor within the same affiliation treated a Morgan & Morgan client, the total medical bills charged, and the amount paid to any third-party company that purchased the client accounts in those cases. In addition, YMCA requested the names of all cases in which the doctor or another doctor within the same affiliation testified at trial or in a deposition on behalf of a Morgan & Morgan client and the expert fee paid in those cases.
YMCA's supplemental request to produce was directed to Worley and sought the following two types of information:
Worley objected to YMCA's interrogatories and supplemental request to produce, arguing that the discovery requests were "overbroad, vague, unduly and financially burdensome, irrelevant and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4)."
Following a hearing concerning Worley's deposition objections, the trial court sustained Worley's objection to the question regarding whether she was referred by her attorneys. However, the trial court overruled all of Worley's other deposition objections. The court informed YMCA that "[t]he only question that you're prohibited from asking is whether or not the attorney's [sic] referred her to the doctor." The court did not address Worley's objections to YMCA's other outstanding discovery requests at that time.
In a second deposition, in conformity with the court's prior ruling, YMCA again asked Worley how she was referred to her doctor. However, Worley again objected on the ground of attorney-client privilege. Nevertheless, in response to YMCA's other questions, Worley stated that she was not referred by another doctor, by Florida Hospital East, or by a friend or relative.
YMCA then filed a "Motion to Compel Better Answers to Boecher Interrogatories and Supplemental Request for Production."
Although not in the court's written order, in its oral pronouncement, the court stated that "[i]f the health care provider doesn't have it, then the law firm is to produce it." The order did not state which party was to bear the costs of complying with the court's order.
Importantly, as stated in the court's order, Worley's written objections to the financial discovery—including the total medical bills charged and the amount paid to any third-party company that purchased the client accounts, the expert fee paid to the doctors for testifying, and "[a]ny and all documents reflecting the amounts received
Worley filed a motion for reconsideration of the court's order, arguing that the information was protected by attorney-client privilege and that it would be overly burdensome, if not impossible, to comply with the court's order, inter alia. Attached to the motion was an affidavit by Deborah Parrott, the Chief Financial Officer ("CFO") of Morgan & Morgan, in which she states that to the best of her knowledge, there are no documents kept or maintained by Morgan & Morgan that address the information sought by YMCA. In the motion and a separate affidavit, Worley's attorney stated that he has identified 238 "separate, Non-Party legal matters involving Plaintiff's Treating Physicians" and that it would be necessary to expend a minimum of one hour attorney review time for each case "to manually search hard-copy files, in order to compile a list of the information requested in the Defendant's interrogatories," at an estimated fee of $94,010.
In her petition, Worley argues that the trial court's order is improper for the following six reasons: (1) it requires production of information protected by attorney-client privilege; (2) it requires Worley to produce documents that do not exist; (3) it requires Morgan & Morgan, a nonparty, to produce the information; (4) it requires Worley or Morgan & Morgan to engage in an unduly and financially burdensome production; (5) it requires Morgan & Morgan to incur all of the costs associated with the production of the ordered discovery; and (6) it expands the scope of bias-related discovery that is otherwise permitted.
"[C]ertiorari is the appropriate remedy when a discovery order `departs from the essential requirements of law, and thus causes material injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal.'" Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla. 1999) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94-95 (Fla.1995)). "In considering a petition for certiorari the reviewing court's first duty is to assess whether the petitioner has made a prima facie showing that the order creates irreparable harm. If the petitioner does not make such a showing, the court lacks jurisdiction and will dismiss the petition." Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1, 3 (Fla. 2d DCA 2001) (citing Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (en banc)). If the petitioner has made a prima facie showing that the order creates irreparable harm, the reviewing court will then determine whether the petitioner has made a prima facie showing that the order departs from the essential requirements of law. McGuire, 670 So.2d at 157. If not, the reviewing court will deny the petition. See id.
In general, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action...." Fla. R. Civ. P. 1.280(b)(1). In Florida, it is well established that the financial relationship between the law firm and the treating physician is not privileged and is relevant to show potential bias. See Brown v. Mittelman, 152 So.3d 602, 604 (Fla. 4th DCA 2014) ("The 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."); Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So.3d 1178, 1178 (Fla. 4th DCA 2014) ("A law firm's financial relationship with a doctor is discoverable on the issue of bias." (citing Pope, 798 So.2d at 2)); Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200, 204 (Fla. 4th DCA 2012) ("Thus, under ordinary circumstances, a defendant may discover from a plaintiff's treating physician the type of general financial bias information set out in Rule 1.280(b)(5)(A)(iii)."); Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4th DCA 2011) ("We agree that Elkins discovery should generally provide sufficient discovery into such financial bias. The discovery here is relevant to a discrete issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit."
However, to protect the privacy interests of the treating physicians and their former patients, before overly-intrusive financial bias information concerning a treating physician's relationship with a plaintiff's law firm is discoverable, there must be some evidence of a referral relationship. See Fla. R. Civ. P. 1.280(b)(5)(A) ("An expert may be required to produce financial and business records only under the most unusual or compelling circumstances
To establish that a referral has occurred, discovery "should first be sought from the party, the treating doctor, or other witnesses—not the party's legal counsel." Steinger, 103 So.3d at 206. Here, YMCA has taken the appropriate steps and has exhausted its inquiry as to how Worley was referred to the treating physicians in this case. All treating doctors have been deposed and were unsure if or by whom Worley was referred. In her second deposition, Worley confirmed that she was not referred by Florida Hospital East, by another doctor, or by a friend or relative. There is no indication that any other witness would have such knowledge. Thus, in order to establish that a referral has occurred, YMCA had no choice but to ask Worley herself. See id.
In Burt v. Government Employees Insurance Co., 603 So.2d 125 (Fla. 2d DCA 1992), the Second District Court held that the question, "[D]id counsel refer her to a particular physician[?]" sought "discovery of confidential communications constituting her attorney's advice regarding this lawsuit." 603 So.2d at 125-26. Although the trial court's preliminary ruling that prohibited YMCA from asking "whether or not the attorney's [sic] referred her to the doctor" was supported by Burt,
Nevertheless, we believe that the trial court's order at issue is consistent with the purpose and policy announced in Boecher. The order required Worley to produce "the names of any and all cases (including plaintiff, defendant, court and case number) where a client was referred directly or indirectly by any [Morgan & Morgan] attorney" to the relevant treating physicians in this case, which necessarily includes information on whether Worley was referred by Morgan & Morgan. Based on the aforementioned case law, we conclude that this aspect of the order does not depart from the essential requirements of law, especially considering YMCA has sufficiently demonstrated a good-faith basis for suspecting that a referral relationship exists.
We also find no error with respect to the court's order requiring Worley to produce "any and all documents reflecting formal or informal agreements, arrangements, and understandings regarding the billing for patients or any direct or indirect referral of a client by any attorney employed by or affiliated with Morgan & Morgan" to any of the treating physicians in this case. As an initial matter, we distinguish this type of discovery from the detailed financial discovery that is prohibited absent a preliminary showing of a referral relationship. Unlike detailed financial and business records that could reveal confidential information protected by the doctor-patient privilege, the limited type of discovery presently at issue here concerns only the existence of a referral relationship between Morgan & Morgan and the treating physicians in this case. As stated earlier, this type of information is relevant, not privileged,
With respect to Worley's remaining arguments, we find that she has not made a prima facie showing of irreparable harm or of a departure from the essential requirements of law, or both. Based on the unrefuted affidavit of Morgan & Morgan's CFO and the court's order requiring Worley to produce "any and all documents reflecting formal or informal agreements" or referrals between Morgan & Morgan and the treating physicians in this case, Worley's second argument is that she is being ordered to produce nonexistent documents, which is generally impermissible. See Allstate Ins. Co. v. Pinder, 746 So.2d 1255, 1256-57 (Fla. 5th DCA 1999). Contrary to Worley's interpretation of the order, however, we interpret the court's language to mean that if "any" documents exist, then Worley must produce them. Of course, if no documents exist, Worley may state as much, and her obligation to produce the first type of discovery under the court's order would be satisfied.
Worley's third argument is that the order improperly requires Morgan & Morgan, a nonparty, to produce the information. In Steinger, the court stated that a law firm may be a primary source of such discovery when "the doctor has no records or provides nebulous testimony about the doctor's past dealings with the referring law firm."
Worley's fourth and fifth arguments concern the burdensomeness and the costs to comply with the court's order. The fact that the order does not include a provision for costs and that the order may be overly burdensome to comply with does not prevent Worley from seeking reasonable compensation for those costs at the end of the case. See Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1200, 1200 n. 5 (Fla. 4th DCA 2000) (quoting Haines City Comm. Dev. v. Heggs, 658 So.2d 523, 531 (Fla.1995)); see also Fla. R. Civ. P. 1.280(b)(5)(C) ("Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions
Worley's last argument is that the order improperly expands the scope of bias-related discovery that is otherwise permissible after Boecher. This argument was implicitly rejected in our analysis of Worley's first argument and is explicitly rejected now. In sum, the order at issue is essentially requiring Worley to produce information regarding the referral relationship between her attorneys and her treating physicians, which is directly relevant to the potential bias of the physicians. It does not require production of any records regarding the money exchanged between Morgan & Morgan and the physicians. In general, defense attorneys are entitled to seek discovery concerning the existence of a referral relationship between opposing counsel and the plaintiff's treating physician(s), especially when there is some indication in the record that the fees charged by the physician(s) are possibly inflated.
Accordingly, we deny Worley's petition. In addition, we certify conflict with Burt v. Government Employees Insurance Co., 603 So.2d 125 (Fla. 2d DCA 1992), to the extent that it holds that the disclosure of a referral of a client by an attorney to a healthcare provider is always protected by attorney-client privilege.
PETITION DENIED; CONFLICT CERTIFIED.
PALMER and BERGER, JJ., concur.