Luther, Collier, Hodges & Cash, LLP – Attorneys at Law

Florida – Appellate Court Upholds Questioning Treating Physician on Potential Bias

Plaintiff slipped and fell at a Winn-Dixie store and brought suit alleging one count of premises liability. The jury found the Plaintiff and Winn-Dixie each 50% negligent and awarded Plaintiff $231,435.13 in damages. On appeal Plaintiff raised five claims of error to include: 1) improper comments by Defendant in opening and closing; 2) improper admission of workers’ compensation documents; 3) improper questions about the timing of Plaintiff retaining counsel; 4) improper cross-examination of Plaintiff’s treating physician; 50 cumulative errors. The court found none of the claims to have legal merit.

Relating to the cross examination of Plaintiff’s treating physician, Winn-Dixie asked the doctor about his relationship with Plaintiff’s attorney, to inquire whether the doctor received income from cases that the firm referred to him. Plaintiff objected and the trial court determined the Florida Supreme Court had determined counsel could inquire into Letters of Protection, whether the doctor had a financial stake in the litigation, as well as inquire into the number of plaintiff’s cases he has handled.

The Third District Court of Appeal agreed with the trial court stating that the Florida Supreme Court in Worley v. Central Florida Young Men’s Christian Assoc., Inc., 228 So. 3d 18 (Fla. 2017) recognized the defense is permitted to establish bias on the part of a treating physician by evidence of a Letter of Protection, whether all or a significant part of the provider’s practice is pursuant to Letters of Protection, or whether the amounts charged are higher than usual for those treatments. In this case Winn-Dixie asked the non-party physician to testify about the percentage of his practice and income derived from referrals from the Plaintiff’s law firm. The court held this line of questioning in order to establish a non-party bias is not precluded by Worley.

Araujo v. Winn-Dixie Stores, Inc. (Appeal from Miami-Dade Circuit Court: 3D18-2475 and 3D18-204).


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