Financial Discovery from Nonparty Physician

Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) set out a procedure that strictly limited the kind of discovery that could be obtained from a physician in a personal injury case.  That opinion was codified in Fla. R. Civ. P. 1.280.  The Elkins case held that requiring a physician who provided compulsory medical examinations to produce extensive discovery concerning their personal finances, including tax returns, amounted to harassing discovery that potentially would chill participation in the judicial process by those physicians.  That case and the subsequent rule limited discovery to the scope of employment by the physician in the pending case, the physician’s general litigation experience, a list of prior cases involving the physician for a reasonable time period and an approximation of the percent of the physician’s practice that related to litigation.  R. Civ. P. 1.280(b)(4)(A)(iii)(4) specifically prohibited requiring a physician to compile nonexistent documents.Two cases involving the same physician decided six months apart by the Fourth District substantially changed the landscape of what discovery could be compelled of a treating physician.  In Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060 (Fla. 4th DCA 2011), Dr. Katzman treated the plaintiffs as the result of referrals from their attorney.  The facts showed that the two plaintiffs in the case were respectively charged $45,000.00 and $36,000.00 for the performance of discectomies, a procedure not approved by Medicare which found that there was a lack of evidence that that procedure was effective in improving health or reducing pain.  The evidence presented was that the procedures took less than 45 minutes to perform.  The Fourth District approved an order of the trial court which required Dr. Katzman to provide the amounts he collected from health insurance companies for the past four years for that type of surgery and to provide the identical information as to amounts Dr. Katzman obtained under letters of protection from attorneys.

In refusing to overturn the trial court’s order overruling the doctor’s objection to this request to produce, the Fourth District concluded at 1064, the following:
The situation presented in this case, which we have
seen recurring, involved a physician who treats a
patient who was involved in an auto accident and
referred by a lawyer.  The physician enters into a
letter of protection (LOP) agreement and agrees
to obtain payment from any recovery that is obtained
in the lawsuit.  In one respect, the physician is a “fact”
witness, a treating physician.
In another respect, the same physician often provides
expert opinions at trial regarding the permanency of
injuries, prognosis, the need for future treatment, etc.
The physician is not merely a witness retained to give
an expert opinion about an issue at trial.  Likewise
this is not a typical treating physician that a patient
independently sought out.  A lawyer referred the
patient to the physician in anticipation of litigation
and therefore the physician has injected himself
into the litigation.  This witness potentially has a
stake in the outcome of the litigation not because of
the LOP – because of the referral by the lawyer.
The LOP merely gives the doctor the assurance that
his/her bill will be paid directly from the proceeds of
any settlement or verdict.  It is the direct referral by
the lawyer to the doctor that creates a circumstance
that would allow the defendant to explore possible

bias on the part of the doctor.The second case decided by the Fourth District bearing on the same issue was Katzman v. Ranjana Corp., 90 So. 3d 873 (Fla. 4th DCA 2012).  The trial court, faced with the very same physician and essentially the same request for production felt he was compelled by the opinion in Katzman v. Rediron to deny the doctor’s objections and to compel discovery.  The Fourth District reversed, sending the case back to the trial court for consideration of the revised opinion in Katzman v Rediron and the difference in the factual underpinning of this case.   The Fourth District pointed out that there were substantial differences between the two cases.  In Ranjana, unlike Rediron, the plaintiff was not referred to the doctor by his lawyer but rather by another physician.  In addition, the procedures were substantially different, involving extensive time on the part of the physician for serious surgeries that the undisputed evidence showed were effective.  The doctor presented evidence that to compile the information requested would take hundreds, if not thousands, of hours of his staff’s time and would substantially disrupt his practice.


In Ranjana, the Court reconsidered its analysis in Rediron, conceding that the above cited rule of procedure expressly precludes a Court from requiring a witness to compile nonexistent documents as was requested.  The evidence also showed that in Ranjana, unlike Rediron, the doctor had sold his account receivable to a third party prior to the motion for protective order and thus had no interest in the outcome of the case.
Given these substantial factual differences, the Fourth District concluded that the trial court had inappropriately relied on its original Rediron opinion and reversed and remanded the case for reconsideration.

Even though the Court concluded in Ranjana that the referral by the attorney was only one factor to be considered in allowing this discovery, it was obviously an important factor in both cases and sends a clear message to the plaintiff’s bar that a direct referral to a physician by an attorney carries with it substantial risk of that becoming an important issue in the case.  These cases make inroads on the nature and extent of discovery available from a physician treating a plaintiff in a personal injury case.

Originally published in February 2013