For many years insurance companies have had the right to send an injured Plaintiff to a doctor of their choosing for a medical exam. Those exams were referred to as independent medical exams (IME). We, plaintiff attorneys, hated that name because the insurance doctors were anything but independent!
The way to show the jury these doctors had no loyalty to the patient and consequently lacked an attachment to the truth was to show the huge payments the insurance company would make to these doctors. They literally pay each insurance exam doctor hundreds of thousands of dollars each year – sometimes millions! The doctor’s job is to complete an exam of the injured person, review their medical history, review the treatment they received after the accident and then testify that the plaintiff was not hurt in the accident.
The financial evidence is weighty. It allows a jury to recognize that if a doctor is paid by an automobile insurance company $500,000 a year for testifying that plaintiffs are not hurt in accidents, that the doctor’s opinion is really not worth considering.
But insurance defense attorneys are clever folk. They decided to turn the table on plaintiffs. They started to use court-ordered discovery to investigate the connection between the treating doctor and Plaintiff’s lawyer.
They started to request information from the doctor about any money the doctor earned treating injury cases where a plaintiff attorney was involved in the case. They tried to argue that this connection between an injured victim seeking medical treatment and their need to seek legal help created a bond between the doctor and the Plaintiff’s lawyer.
As a general matter court usually tries to find a balance between what is fair for the goose and what is fair for the gander. In that spirit, the 5th DCA came out with a horrible opinion and analysis which initially the defense attorneys to conduct discovery which included information related to what an attorney tells their client about doctors. It also allowed them to look at the financial information on what doctors get by way of treatment of an injured person. On its face this might seem fair. But it isn’t! There is a huge difference between a Doctor Who season injured person as a patient. Is responsible for their care. Is responsible to give them good advice. And, if they failed to give that good advice or right advice, are subject to being sued for malpractice for their failure at a professional level. This is to be compared with a Doctor Who has no responsibility for the patient. Whose only responsibility is to provide an opinion to the insurance company and which the patient is not allowed to rely on as good medical advice. Those are completely different jobs and must be held two completely different standards. To say that a doctor is biased because they are paid for treating someone medically is the same as saying A criminal defense attorney is a bad human being because they take money from criminals to defend them in the lot. It is the doctor’s job to treat her human being. There is nothing biased about it. It is not a doctor’s job to create evidence for an insurance company to stop them from having to pay an insurance claim. That is a wholly different job and subject to cross-examination at a financial level.
Yesterday, April 13, 2017, the Supreme Court of Florida finally overturned the Fifth District Court of Appeal case, Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So. 3d 1240 (Fla. 5th DCA 2015), and confirmed that the case it conflicted with, Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992), was properly decided was the right analysis. The attorney/client privilege must be preserved and treating doctors are different than insurance exam doctors and therefore deserve protection!
Now the advice of lawyers to their clients is again protected. Injured victims can listen to their attorney and avoid insurance doctors who are biased against them, and not worry that the defense attorney can cross-examine them or their doctor because they wanted to find good medical care!