Florida Legal Update September 2014

Shine Some Light On It:  The Relationship Between Doctor And Referring Lawyer Cannot Be Hidden.

Discovery of the relationship between the treating physician and law firm is not limited to just the referring law firm.  The Fourth District Court of Appeals recently ruled against a non-party medical doctor who sought a writ of certiorari to prevent discovery into his relationship with a plaintiff’s law firm. See Brown v. Mittelman, 39 Fla. L. Weekly D1806a (Fla. 4th DCA 2014). After a plaintiff’s original attorney referred the plaintiff to Dr. Neil Brown, the law firm of Lytal, Reiter, Smith, Ivey & Fronrath, LLP (“Lytal Reiter”) joined as co-counsel for the plaintiff. Id. During discovery, defense counsel issued a subpoena to Dr. Brown’s office seeking to discover documents regarding patients previously represented by both law firms. Id. Dr. Brown unsuccessfully objected to the subpoena arguing that his relationship with Lytal Reiter was not discoverable for lack of evidence that the firm directly referred the plaintiff to Dr. Brown. Id.

In rejecting Dr. Brown’s writ of certiorari, the Fourth DCA recognized that “[w]hether the law firm directly referred the plaintiff to the treating physician does not determine whether discovery of the doctor/law firm relationship is allowed.” Id. Though the Fourth DCA previously recognized that a direct referral by the lawyer to the doctor was one circumstance that created a potential bias, the Court “did not intend to limit discovery to that narrow situation.” Id. “…the fact that Lytal Reiter did not directly refer the plaintiff to Dr. Brown makes no difference.” Id. Based upon the Court’s ruling, the relationship between a doctor and a lawyer cannot be hidden by employing additional counsel for the purposes of referring plaintiffs.  .””  For a copy of the decision, see:

Read the full decision.


Second DCA recognizes Insured’s Failure to Comply with Compulsory Medical Examination Requirement Does Not Automatically Result in Forfeiture of Coverage

Following a rear-end motor vehicle accident, Ms. Bush filed suit against State Farm seeking uninsured motorist benefits. See Bush v. State Farm Mut. Auto. Ins. Co., 39 Fla. L. Weekly D1575b (Fla. 2d DCA 2014). Upon receipt of a Notice of Examination pursuant to her insurance policy and Florida Rule of Civil Procedure 1.360, Ms. Bush filed objections and demanded various protections. Id. State Farm rejected Ms. Bush’s demands.  When she did not show up for the scheduled medical examination, the insurer proceeded to add a defense of “no coverage” and obtained summary judgment. Id.

Ms. Bush appealed arguing that State Farm had not been prejudiced by any delay caused by her objections and that State Farm had the burden to seek a hearing and an order to compel the examination under Rule 1.380(a)(2). Id. While the case was pending on appeal, Florida’s Supreme Court “held that an insured’s failure to comply with an insurance policy’s compulsory medical examination clause did not result in automatic forfeiture of coverage.” Id. citing State Farm Mut. Auto. Ins. Co. v. Curran, 135 So.3d 1071, 1079 (Fla. 2014). Additionally, the Supreme Court found compulsory medical examinations to be a post-loss obligation of the insured rather than a condition precedent to coverage and thus placed the burden on the insurer to plead and prove the matter. Id. Since the trial court’s order made neither a finding of a material breach by Ms. Bush or of prejudice to State Farm, the 2nd DCA reversed and remanded the matter for reconsideration in light of Curran.

Read the full decision.