The Week in Torts – Cases from the Week of April 14, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 15

CASES FROM THE WEEK OF APRIL 14, 2017

THE ATTORNEY-CLIENT PRIVILEGE DOES PROTECT PARTIES FROM DISCLOSING THAT THEIR ATTORNEYS REFERRED THEM TO A DOCTOR FOR TREATMENT AFTER ALL.

Worley v. Central Florida Young Men’s Christian Ass’n, 42 Fla. L. Weekly S444 (Fla. 5^th DCA April 13, 2017):

The Florida Supreme Court addressed some very important issues regarding discovery and attorney-client privilege, which have evolved in the eight years since the Court decided Boecher.

As of late, the pursuit of “biased discovery” regarding physicians involved in personal injury litigation has gotten totally out of control. The Fourth District, in Lytal, Reiter, Smith, Ivey & Fronrath v. Malay for example, held that a law firm’s financial relationship with a doctor was in fact discoverable on the issue of bias.

Here, not only did the trial judge compel the plaintiff to answer defense counsel’s question about whether she was referred to her doctors by her attorneys, it also ruled to compel the production of copies of documents reflecting formal or informal agreements or arrangements supporting the referral of any client from the Morgan & Morgan law firm to several medical providers, as well as the names of any and all cases where a client was referred directly or indirectly by an attorney to those medical entities.

The supreme court now seems to have put a stop to the craziness which has become expert witness bias discovery in personal injury cases. Reiterating the Second District’s holding in Burt v. Geico, the court reminded us that the attorney-client privilege does indeed protect the party from having to disclose that his or her attorney referred the party to a physician for treatment.

Contrary to the argument made by the defendant in this case, a lawyer’s act of referring a client to a treating physician is a communication and not merely an underlying fact which might be discoverable. The purpose of the privilege is to encourage the free flow of information between attorneys and their clients, and whether the plaintiff’s attorney requests that the client see a certain doctor, requires the plaintiff to disclose a part of a communication that was held between the plaintiff and the attorney. The court said it wantedto resist any attempts to separate the contents of communications to distinguish facts from privileged information.

In rejecting other kinds of discovery from law firms, the court said the first major fact distinguishing this case from Boecher is that the law firm is not a party to the litigation (unlike the insurance company in Boecher). Additionally, Boecher dealt with the discovery of experts who had been hired for the purposes of litigation.

In this case, the court said that treating physicians do not acquire their expert knowledge for the purpose of litigation, but rather in the course of attempting to make their patients well. They are simply testifying concerning their own medical performance on a particular occasion and do not opine about the performance of another.

The court explained that there are still many ways to attack a witness’s credibility based on bias. For instance, treating physicians may be impeached by providing evidence of a letter of protection demonstrating that the physician has an interest in the outcome of the litigation. Bias may also be established by providing evidence that the physician’s practice was based entirely on patients treated pursuant to LOPs (as was found in this case involving Morgan & Morgan). Additionally, medical bills that are higher than normal can be presented to dispute the physician’s testimony regarding the necessity of treatment and the appropriateness of the amount of damages.

In the face of affidavits filed by Morgan & Morgan, stating that it would cost approximately $90,000 and required 200 hours of time to comply with the request, the supreme court also found that discovery of a collateral issue in this kind of case where the damages themselves were only being sought at $60,000, was unduly burdensome.

Even in cases where plaintiffs’ medical bills may appear to be inflated for the purposes of litigation, the court said it did not believe that engaging in costly and time consuming discovery to uncover a “cozy agreement” between and the law firm and the treating physician is the appropriate response. The court expressed its concern that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. The court also said it worried that discovery orders such as the one in this case would inflate the cost of litigation to the point that some plaintiffs would be denied access to courts as attorneys would no longer be willing to advance those types of costs.

What does the future hold for this kind of discovery?

I believe that Worley signals the death knell for discovery of what has become known as the “hybrid” expert; i.e., a treating physician who is also giving expert testimony. Judging by the court’s emphasis that the Boecher experts “had been hired for the purposes of litigation,” and the distinction the court drew between those kinds of experts and treating physicians who do not acquire their expert knowledge for the purposes of litigation but rather simply in the course of attempting to make their patients well, coupled with the other comments made by the court regarding access of courts and the chilling effect this kind of discovery has on doctors who are willing to treat injured victims, I believe Worley signals a return back to Boecher. At the time of Boecher, only those experts retained for litigation were subject to the bias type discovery discussed.

As is always the case (which keeps us all in business), the case leaves some unanswered questions: When a UM carrier is not a party to the litigation, and the defendant “person” is the party, can a plaintiff seek Boecher discovery from the insurance company? Also, while it is clear that law firms have to respond to Boecher discovery regarding treating physicians, is that also the case with respect to retained experts? The law firm is still not the party, but the rationale is different.

STATUTE OF LIMITATIONS RAN ON THE NEGLIGENCE CLAIMS OF TWO TODDLERS, AND NEITHER THE DELAYED DISCOVERY DOCTRINE, NOR THE EXCEPTION TO THE STATUTE OF LIMITATIONS FOR CLAIMS OF MINORS COULD SAVE IT.

D.H. v. Adept Community Services, 42 Fla. L. Weekly D776 (Fla. 2^nd DCA April 5, 2017):

Twin babies were born in September of 2005 to a developmentally disabled mother. The mother was receiving services from a Medicaid program that provided in-home support for disabled adults, and was supposed to provide a live-in aid to enable the mother to live on her own and take care of her babies. The services fell woefully short of meeting their objectives.

When the babies were only six months old, the Sheriff’s office removed them from their mother’s custody, and Florida Department of Children and Families filed a petition to shelter them based on allegations of abandonment, abuse and neglect in dependency court.

The petition alleged that the mother had fired the live-in aid, was incapable of caring for the twins independently, had multiple sex partners including one with a criminal history, and repeatedly dropped the babies, causing them physical, mental and emotional injuries.

Shortly thereafter, they were adjudicated dependent and placed in the temporary care and custody and control of their maternal grandparents. The grandparents were appointed permanent guardians a year and a half later.

The grandparents filed a negligence complaint against the agency on November 22, 2010. However, the Sheriff’s office had removed the twins from their mother’s custody on April 11, 2006, more than four years before. The defendants moved to dismiss the complaint based on statute of limitations.

The grandparents testified that even before the twins were removed from their mother’s care, they were aware of the agency’s roles in assisting the mother, and were also aware that the twins had been abused and neglected while in their mother’s care. Thus, the grandparents were aware of the invasion of their grandchildren’s legal rights as of April 11^th, if not by May 19, 2006, when the department produced a comprehensive behavioral health assessment noting the problems the twins were experiencing due to the abuse. Because the statute of limitations begins to run when the party knew or should have known, there is no place for the delayed discovery doctrine here, because the grandparents did know.

The issue in the case then became whether the grandparents had authority to bring a lawsuit in a timely fashion since they were not legally appointed guardians until April 13, 2007. Unfortunately, pursuant to F.R.C.P. 1.210(b), infants or incompetents who do not have a duly appointed representative may still be sued by a “next friend” or by a guardian ad litem.

In this instance, the grandparents were proper next friends and had the authority to sue as of April of 2006. That fact coupled with the crystallized knowledge that these grandparents did have knowledge of the abuse more than four years before suit was filed, unfortunately barred suit for these innocent children.

CERTIORARI GRANTED WHEN COURT COMPELLED DISCLOSURE OF NON-PARTY IDENTIFICATION INFORMATION IN SURVEYS COMPLETED BY GUESTS AT A HOTEL.

Josifov v. Kamal-Hashmat, 42 Fla. L. Weekly D789 (Fla. 3^rd DCA April 5, 2017):

A woman’s husband tragically died while swimming at Loews Miami Beach Hotel. Plaintiff subpoenaed the hotel’s guest survey service to produce all customer/guest surveys related to the swimming pool.

The hotel insisted that the database regarding guest information (guest names and contact information specifically) was protected. The court compelled the production of that information and the hotel petitioned for a writ.

The court noted that the names and contact information of the non-party hotel guests who completed surveys was constitutionally protected as a violation of privacy details. Also, the record did not demonstrate that the plaintiff’s need for the information was balanced against the guests’ constitutionally protected rights of privacy.

While the discovery of guests’ comments on the condition of the pool and its operations was appropriate, the plaintiff was not entitled to discover the names and information of all the survey respondents, because the names of those potential witnesses are discoverable. In this instance, without knowing when the guests were at the hotel, none of the survey respondents could have been witnesses.

Only if the survey revealed that the guest stayed at the hotel at the time when the decedent drowned, would the identity of the guest then be discoverable, as is the case with any witness.

The court also stated that the guests do have a reasonable expectation of privacy in the information having provided it to the hotel to make reservations. Thus, there must be a showing made of necessity to outweigh the countervailing interests and maintaining the confidentiality of the information and, again, that was not made in this case. Because these non-party survey respondents have no remedy by direct appeal, the issuance of a writ was proper.

TRIAL COURT ABUSED DISCRETION IN EXCLUDING STATEMENTS PLAINTIFF MADE TO THE EMT AT THE SCENE–STATEMENTS CONSTITUTED AN ADMISSION.

Ring Power Corp. v. Condado-Perez, 42 Fla. L. Weekly D793 (Fla. 2^nd DCA April 7, 2017):

In this accident which happened on I-75, it was undisputed that there was a mattress in the north bound lanes of the highway, causing cars to stop or swerve unexpectedly. The parties agreed that there were two north bound lanes on I-75, a median between the north and south bound lanes, and a narrow shoulder adjacent to the median.

The plaintiff alleged he did nothing to contribute to the accident. He claimed that for two or more miles prior to the accident, he was traveling in the left lane, and saw traffic slowing ahead of him when someone started pulling a mattress out of the roadway. He claimed he did not suddenly swerve from the right lane into the left lane in the front of the defendant driver’s vehicle.

Plaintiff testified he saw defendant’s vehicle directly behind him but was going too fast and following too closely and when it appeared he was going to get rear-ended. Then, plaintiff steered his vehicle into the narrow shoulder to the left. Unfortunately, because of the narrowness of the shoulder, he said he was unable to completely exit the left lane and then was struck in the rear causing his vehicle to roll over, significantly injuring the plaintiff and his passenger.

Conversely, the defendant claimed the accident was caused totally by the plaintiff who suddenly and unexpectedly swerved from the right lane to the left lane and then onto the left shoulder. He said the mattress was less than a hundred yards away when the traffic in front of him reacted by slowing and stopping.

Upon being treated by Pasco Fire Rescue, the EMT prepared a mandatory patient care report based on his conversation with the plaintiff, stating that he stated he swerved to avoid a mattress in the road then lost control of the car and went off the road. The EMT prepared the report on the day of the accident.

Plaintiff sought to exclude that statement in limine, arguing that the EMT’s reference to the plaintiff as the passenger’s husband was inaccurate, therefore undermining the reliability of the report. He also argued that the statement was inadmissible because it lacked a proper foundation, that he is not a proficient English speaker and he denied making the statement at all.

Defendant asserted the statement was an admission by a party opponent, an excited utterance, and/or a spontaneous statement and while it was hearsay within hearsay, it was admissible because both the report and the plaintiff’s statement within the report were both subject to an exception under section 90.803.

After awarding the plaintiff a combined approximately $900,000 verdict, and apportioning most of the responsibility to the defendant himself, the defendant moved for a new trial.

On appeal, the Second District held it was error to grant the plaintiff’s motion in limine because the plaintiff’s statement to the EMT was an admission pursuant to section 90.803(18)(a).

Although the plaintiff’s statement was not admissible as a statement for purposes of medical diagnosis or treatment as part of a business records exception, it was still admissible as an admission.

The court then explained that the exclusion of the statement was not harmless, because there were two distinct and mutually exclusive theories advanced about the cause of the accident. The plaintiff’s statement in the EMS report also expressly corroborated the defense’s theory of liability.

Whether the plaintiff swerved into the defendant’s path, or if the defendant was driving too fast and too closely were issues for the jury to decide after weighing the evidence, which included the plaintiff’s admission.

Finally, the court commented that because the EMT was unavailable at the time of trial, pursuant to rule 1.330(a)(1), his deposition could have been used for any purpose.