Brown v. Mittelman, 4D14–1748.

• Citation: 152 So.3d 602
• Decision Date: 27 August 2014
• Docket Number: No. 4D14–1748.,4D14–1748.
• Parties: Neil BROWN, Petitioner, v. Esther MITTELMAN, Respondent.
• Court: Court of Appeal of Florida (US)

152 So.3d 602

Neil BROWN, Petitioner

v.Esther MITTELMAN, Respondent.

No. 4D14–1748.

District Court of Appeal of Florida, Fourth District.

Aug. 27, 2014.

Rehearing Denied Dec. 19, 2014.

Sanford R. Topkin of Topkin & Partlow, P.L., Deerfield Beach, for petitioner.

Warren Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for respondent.

Opinion

PER CURIAM.

Non-party, Dr. Neil Brown, petitions this court for a writ of certiorari to quash a discovery order denying his objections to a subpoena duces tecum. Because Florida Rule of Civil Procedure 1.280(b)(5) does not apply to the requested discovery, and because “[a] law firm's financial relationship with a doctor is discoverable on the issue of bias,” we deny the petition.See Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So.3d 1178, 1178 (Fla. 4th DCA 2014).

The underlying litigation is a negligence action arising from an automobile accident. The plaintiff's attorney, Cindy Goldstein, referred the plaintiff to Dr. Brown, who treated the plaintiff under a letter of protection (“LOP”) agreement. The law firm of Lytal, Reiter, Smith, Ivey & Fronrath, LLP (“Lytal Reiter”) joined as Ms. Goldstein's co-counsel. Defendant/respondent subsequently subpoenaed the person with the most billing knowledge at Dr. Brown's office to produce documents regarding patients previously represented by both law firms, LOP cases, and referrals from the plaintiff's attorneys. The trial court overruled Dr. Brown's objections to the subpoena and compelled discovery of the requested documents. Dr. Brown now petitions this court to quash the discovery order, arguing that rule 1.280(b)(5) prohibits this discovery and that his relationship with Lytal Reiter is not discoverable because there is no evidence that the firm directly referred the plaintiff to Dr. Brown.

A party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2009). 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. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1, 3 (Fla. 2d DCA 2001) ; Springer v. West, 769 So.2d 1068, 1069 (Fla. 5th DCA 2000). A physician may derive substantial income from treating patients involved in litigation beyond the provision of services as a retained expert. A jury is entitled to know the extent of the relationship between the treating doctor and the referring law firm. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999) (“The more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”).

The discovery available under rule 1.280(b)(5) does not compel full disclosure of a treating physician's potential bias. The rule limits discovery to “[a]n approximation of the portion of the expert's involvement as an expert witness ” based on data such as the “percentage of earned income derived from serving as an expert witness. ” Fla. R. Civ. P. 1.280(b)(A)(5)(iii) 4. (emphasis added). A physician's continued financial interest in treating other patients referred by a particular law firm could conceivably be a source of bias “not immediately apparent to a jury.” Morgan, 798 So.2d at 3. Rule 1.280(b)(5) neither addresses nor circumscribes discovery of this financial relationship.

Whether the law firm directly referred the plaintiff to the treating physician does not determine whether discovery of the doctor/law firm relationship is allowed. In Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4th DCA 2011), we recognized a “direct referral by the lawyer to the doctor” as one circumstance that creates a potential for bias. However, contrary to Dr. Brown's assertion, we did not intend to limit discovery to that narrow situation.¹ See, e.g., Pack v. Geico Gen. Ins. Co., 119 So.3d 1284 (Fla. 4th DCA 2013) (recognizing that the potential bias arising from a letter of protection exists independent of any referral relationship). A doctor's referral arrangements with a law firm in other cases is a proper source for impeachment. Flores v. Miami–Dade Cnty., 787 So.2d 955, 958–59 (Fla. 3d DCA 2001). Thus, the fact that Lytal Reiter did not directly refer the plaintiff to Dr. Brown makes no difference.

Similar to the protections afforded to retained experts under rule 1.280(b), we have recognized that a treating physician witness should be protected from overly-intrusive financial discovery. Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200, 203–04 (Fla. 4th DCA 2012). Trial courts have broad discretion to balance the interests involved and generally should not permit extensive discovery of a treating physician's finances. See Syken v. Elkins, 644 So.2d 539, 544–45 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996). Such overly-intrusive discovery creates a “chilling effect” on the availability of experts willing to serve as witnesses in litigation, id. at 547, and could similarly chill the willingness of doctors to treat patients involved in litigation. This does not mean that all relationships between law firms and treating doctors can be...