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Recent Florida Case Law on Letters of Protection

Letters of Protection complicate accurate valuation and defense of cases involving bodily injury. When a person receives healthcare under a private health insurance plan or governmental insurance, the rates charged for the care are highly regulated and controlled. When people treat and pay out of pocket, those individuals will logically tend to be more selective and reluctant to incur unrealistically high bills. None of these controls are present when a plaintiff is treating under a Letter of Protection. Instead, the plaintiff is likely incentivized to incur larger bills to drive up the overall value of the economic damages in the case. Doctors providing care under Letters of Protection often charge many times more than the typical cost of the services and later accept a fraction of their billed amounts as part of an ongoing relationship with plaintiffs’ attorneys. Thus, it is critical that the defense has the ability to explore that relationship and challenge the bias of the providers and the reasonableness of the bills. Florida courts have recently addressed this issue in multiple cases.

The Fourth District Court of Appeals addressed discovery on letters of protection in Brown v. Mittelman (2014) 152 So. 3d 602. In that matter, the defendant subpoenaed documents from the plaintiff’s treating physician regarding patients previously represented by counsel for the plaintiff, letters of protection and referrals from the plaintiff’s attorneys. In ruling that such documents were subject to discovery, the court held “that the rule limiting financial discovery from retained experts cannot be used to hide relevant information regarding a treating physician’s possible bias or the reasonableness of the charges at issue in the litigation.” The court also noted that the respondent was not asking for broad financial discovery but rather seeking to uncover an ongoing relationship between the treating physician and the plaintiff’s lawyers that might bias the doctor to provide favorable testimony for the plaintiff and thus the trial court did not depart from the essential requirements of the law in overruling the doctor’s objections. Further, the court held that “where there is evidence of a referral relationship, more extensive financial discovery may be appropriate from both the law firm and the doctor.”

The Fifth District Court of Appeals also addressed a similar issue in Worley v. Central Florida Young Men’s Christian, Etc. (2015)163 So. 3d 1240. In that case, a defendant requested documents demonstrating the relationship between the law firm representing the plaintiff and a healthcare provider. Specifically, the court ruled that it “also find[s] no error with respect to the court’s order requiring Worley to produce ‘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’ to any of the treating physicians in this case.” The Court went on to hold that “nlike detailed financial and business records that could reveal confidential information protected by the doctor-patient privilege, the limited type of discovery presently at issue here concerns only the existence of a referral relationship between Morgan & Morgan and the treating physicians in this case.” Furthermore, the court ruled that Morgan & Morgan could be a primary source of the information when “the doctor has no records or provides nebulous testimony about the doctor’s past dealings with the referring law firm.”

In summation, multiple Florida courts have held that the defense has the right to conduct discovery on the relationship between providers and plaintiffs’ attorneys. If the providers do not maintain records on this relationship, the defense may obtain the documentation directly from the plaintiff’s attorneys. This can be a valuable tool in attacking the reasonableness of the alleged economic damages.


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