Worley v. Cent. Fla. Young Men's Christian Ass'n, Inc.

• Decision Date: 13 April 2017
• Docket Number: No. SC15–1086,SC15–1086
• Citation: 228 So.3d 18
• Parties: Heather WORLEY, Petitioner, v. CENTRAL FLORIDA YOUNG MEN'S CHRISTIAN ASS'N, INC., Respondent.
• Court: Florida Supreme Court

228 So.3d 18

Heather WORLEY, Petitioner,

v.CENTRAL FLORIDA YOUNG MEN'S CHRISTIAN ASS'N, INC., Respondent.

No. SC15–1086

Supreme Court of Florida.

[April 13, 2017]

Andrew Parker Felix and W. Clay Mitchell, Jr., of Morgan & Morgan, P.A., Orlando, Florida; and Celene H. Humphries, Philip J. Padovano, and Tracy S. Carlin of Brannock & Humphries, Tampa, Florida, for Petitioner

Joseph R. Flood, Jr., Jessica C. Conner, and Lamar D. Oxford of Dean, Ringers,

Morgan & Lawton, P.A., Orlando, Florida, for Respondent

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association

Katherine E. Giddings, BCS, and Diane G. DeWolf of Akerman LLP, Tallahassee, Florida; David I. Spector of Akerman LLP, West Palm Beach, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, for Amicus Curiae Florida Justice Reform Institute

Sharon C. Degnan and Caryn L. Bellus of Kubicki Draper, P.A., Miami, Florida, for Amicus Curiae Florida Defense Lawyers Association

QUINCE, J.

We have for review the decision of the Fifth District Court of Appeal in Worley v. Central Florida Young Men's Christian Ass'n, Inc., 163 So.3d 1240 (Fla. 5th DCA 2015), in which the district court certified conflict with Burt v. Government Employees Ins. Co., 603 So.2d 125 (Fla. 2d DCA 1992), regarding whether the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we conclude that the question implicates a confidential communication between the attorney and the client and is therefore protected. Accordingly, we quash the decision of the Fifth District and approve the decision of the Second District Court of Appeal.

FACTS

In its opinion granting certiorari review of the trial court's order on discovery, the Fifth District set forth the relevant facts:

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.

Worley, 163 So.3d at 1242. During discovery of this "relatively routine trip-and-fall case," Central Florida Young Men's Christian Association, Inc. (YMCA), repeatedly attempted to discover the relationship between Worley's law firm, Morgan & Morgan, and her treating physicians. Id.

At Worley's initial deposition, YMCA asked if she was referred to her specialists by her attorneys, to which Worley's counsel objected on the ground of attorney-client privilege. Id. YMCA then propounded to Worley three sets of Boecher ¹ interrogatories, directed to specific doctors employed by Sea Spine, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia, and a supplemental request to produce, directed to Morgan & Morgan, in an effort to establish the existence of a referral relationship between Worley's attorneys and her treating physicians. 163 So.3d at 1242–43. These efforts were based on YMCA's suspicions that there was a "cozy agreement" between Morgan & Morgan and the physicians, due to the amounts of Worley's medical bills. Id. at 1243.

In response to YMCA's interrogatories and supplemental request to produce, Worley argued that the 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)." Id. Worley also contended that Morgan & Morgan does not maintain "information for treating physicians as in this matter, or otherwise." Id. Despite this, at a hearing concerning Worley's objections, the trial court only sustained Worley's objection to the question regarding whether she was referred to the doctors by her attorneys and "did not address Worley's objections to YMCA's other outstanding discovery requests at that time." Id. at 1244.

At a second deposition, YMCA again asked Worley how she was referred to her doctor, and again Worley's attorney objected on the ground of attorney-client privilege. Id. Following the deposition, YMCA filed a "Motion to Compel Better Answers to Boecher Interrogatories and Supplemental Request for Production." Id. This prompted a second hearing before the trial court, where Worley was required to produce, within 30 days, two types of discovery materials for the time period between three years prior to and six months after December 4, 2012:

[1] complete copies of 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 (whether currently or formerly employed by or affiliated with Morgan & Morgan) to any of the following entities or persons: Sea Spine Orthopedic Institute (or its doctors); Underwood Surgery Center (or its doctors); Physicians Surgical Group (or its doctors); and Sanctuary Surgical and Anesthesia (or its doctors), and vice versa [; and]

[2] the names of any and all cases (including plaintiff, defendant, court and case number) where a client was referred directly or indirectly by any attorney employed by or affiliated with Morgan & Morgan (whether currently or formerly employed by or affiliated with Morgan & Morgan) to any of the following entities or persons: Sea Spine Orthopedic Institute (or its doctors); Underwood Surgery Center (or its doctors); Physicians Surgical Group (or its doctors); and Sanctuary Surgical and Anesthesia (or its doctors), and vice versa.

Id. Additionally, the trial court ordered that "[i]f the health care provider doesn't have it, then the law firm is to produce it," but did not specify which party had to incur the costs of complying with the order. Id.

In its motion for reconsideration of the trial court's order, Worley argued that the information was protected by attorney-client privilege and that compliance with the order "would be overly burdensome, if not impossible." Id. at 1245. In support of the latter argument, Worley provided two affidavits. Id. The first, by Deborah Parrott, the Chief Financial Officer (CFO) of Morgan & Morgan, stated that there were no documents "kept or maintained by Morgan & Morgan that address the information sought by YMCA." Id. The second, by Worley's attorney, stated that production of the requested materials would require over 200 hours of attorney review time "to manually search hard-copy files" at an estimated cost of $94,010. Id. The trial court summarily denied the motion. Id.

Worley then filed a petition for writ of certiorari with the Fifth District. Id. Worley's main claim was that the trial court order requires the production of information protected by the attorney-client privilege.² Id. In denying Worley's claim, the district court held "that it was appropriate for YMCA to ask Worley if she was referred to the relevant treating physicians by her counsel or her counsel's firm." Id. at 1247–48. It also found no error regarding the trial court's order for Worley to comply with YMCA's supplemental request to produce. Id. at 1249. Accordingly, the Fifth District denied Worley's certiorari petition and certified conflict with Burt"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 the attorney-client privilege." Id. at 1250.

ANALYSIS

The issue before this Court is whether the attorney-client privilege protects a plaintiff from disclosing that an attorney referred him or her to a doctor for treatment, or a law firm from producing documents related to a possible referral relationship between the firm and its client's treating physicians. However, resolution of this issue will require us to first consider another issue: whether the financial relationship between a plaintiff's law firm and the plaintiff's treating physician is discoverable. In its decision approving the order, the Fifth District relied on district court decisions that have held that the financial relationship between a law firm and a plaintiff's treating physician is discoverable, pursuant to our decision in Boecher, if evidence of a referral relationship can be shown. See Worley, 163 So.3d at 1246 (citing Brown v. Mittelman, 152 So.3d 602 (Fla. 4th DCA 2014), and Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200 (Fla. 4th DCA 2012) ).

We disagree that Boecher is applicable and, accordingly, disagree with the reasoning of these decisions. In Boecher, we considered whether a party could obtain discovery from the opposing party regarding the extent of that party's relationship with an expert. Boecher, 733 So.2d at 994. In that case, the insured sought to discover from the insurance company the extent of its financial relationship with the expert witness that the insurance company intended to call at trial to dispute causation. Id. In concluding that the discovery was permissible, we recognized our earlier decision in Elkins v. Syken, 672 So.2d 517 (Fla. 1996). There, experts retained to provide compulsory medical examinations were ordered to produce expansive discovery of their private financial information, including tax returns. Id. at 520. We found such invasive and harassing discovery to be impermissible because it threatened to chill...