Regular readers of this blog (Hi, Mom!) will probably remember that cross-examining defense medical experts on the issue of financial interest bias is a topic that I have discussed several times. That is because our lawyers believe that when an expert has a financial interest bias, that it is of vital importance to get that information before the jury, so they can fairly evaluate the wtiness’ testimony.
In Maryland, the most useful authority on the issue is contained in two appellate opinions: Wrobleski v. DeLara, 353 Md. 509, 727 A.2d 930 (1999), and Falik v. Hornage, 413 Md. 163, 991 A.2d 1234 (2010). The second one is a Miller & Zois case. Actually, two cases combined for appeal. My firm handled both of these cases. So we feel that our law firm is out on the leading edge in this issue.
One topic that often comes up in personal injury litigation is the issue of personal injury lawyers referring clients to particular medical providers. Defense lawyers always want to delve into this, on the theory that there is some wink and nod quid pro quo between the lawyer and the doctor that the referral will result in favorable testimony. I don’t know that this is necessarily true. There are lots of good reasons referrals like this are made: many clients do not have health insurance to pay for treatment, Maryland PIP is only $2500 (and is often used up to replace lost wages), and many treatment providers will not accept patients who were involved in accidents.
So many clients have a good reason why they need a referral to a physician who will treat the patient and wait to get paid until the legal matter concludes. The way this works in practice is that the patient is asked to sign a document that promises to make payment when funds are received, and directs their attorney to make the payment to the doctor out of any funds recovered. This is usually called an Authorization and Assignment (“A&A”), or a letter of protection (“LOP”). Good defense lawyers always subpoena the treating doctor’s file. When they find a document like this, on cross-examination they will try to use it to imply that the doctor is giving testimony favorable to the patient because of their own interest in getting paid at the end of the case. I have seen this line of questioning used many times.
Today, I saw a new twist on the issue (HT to Overlawyered). A U.S. District Court in Florida has permitted discovery into the relationship between plaintiffs’ lawyers and treating/testifying medical providers. Discovery was permitted into the amounts paid by the plaintiffs’ lawyers to a particular medical provider under LOP’s for the prior four years, the number and amount of the payments made to the provider by the plaintiff’s law firm in other cases, and the number of clients referred to the medical provider by the plaintiff’s lawyers.
I have not (yet) seen any attempts by defense lawyers in Maryland to obtain this kind of discovery. I understand the argument in favor of allowing it- it there is a potential bias, it should be a proper subject of cross-examination. But I can also see a host of reasons it should not be permitted. A treatment referral is a legally privileged attorney-client communication. Records of payments made on behalf of clients in legal matters are confidential client materials. To the extent that the physician is a treating medical provider and the payments concern medical treatment, there may be HIPPA concerns to the extent the request applies to patients who are not parties to the case. Moreover, ordering the attorneys to produce this material essentially makes the plaintiffs’ lawyers witnesses against their own client. And specific to the facts of the Florida case, the facts justifying the more invasive discovery requests came from the testimony of a former paralegal at the plaintiff’s attorneys’ law firm who has been described as a “disgruntled former employee.” The Florida court did not accept these arguments when they were made by the plaintiff’s lawyers. Since the opinion is from a trial court, I expect an appeal (albeit under a very favorable abuse of discretion standard).
I am going to keep an eye out for when this tactic hits Maryland. It raises a variety of issues in terms of interpreting the rules that apply to discovery and to the admission of evidence, as well as some interesting policy questions. I’m actually kind of surprised nobody has tried it here yet, particularly since it is State Farm pushing the issue in the Florida case, and State Farm was one of the insurers involved in the Hornage case here in Maryland. I will let you know if I hear about this happening here.