The Most Common Questions Slip and Fall Accident Clients Have After An Incident

One the most common questions slip-and-fall or trip-and-fall clients will ask their personal injury lawyers is where and from whom they should seek medical care after their slip and fall accident. Personal injury lawyers like me typically work with a cadre of doctors and therapists, ranging from orthopedic surgeons to neurologists and anesthesiologists (for pain management), who they believe will provide excellent care for their clients–as well as be willing and able to come to court and testify about their opinions on the injuries and the future consequences for their clients. Such consultation is especially common when the injured person does not have health insurance or only limited coverage.


Inevitably, if the cases must be litigated and the injured plaintiffs are questioned by the insurance company’s defense lawyers, the question arises as to how the plaintiffs found the doctors who treated them for their injuries. A significant issue arises if, as often happens in Florida personal-injury claims, the plaintiff’s lawyer made the “referral”; the very nature of the referral and the conversation that it must have been part of–as well as any other conversation between an attorney and the client–is privileged, meaning it is protected from discovery.

One would think the question of forcing a personal injury plaintiff to disclose this information would have been the subject of well worked out arguments and dusty legal text books. However, Florida’s Supreme Court was only recently asked to decide once and for all what Florida law is on this issue.((HEATHER WORLEY, Petitioner, v. CENTRAL FLORIDA YOUNG MEN’S CHRISTIAN ASS’N, INC., Respondent. Supreme Court of Florida. Case No. SC15-1086. April 13, 2017. Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions. Fifth District – Case No. 5D14-3895 (Orange County). ))

Slip and Fall at a YMCA in Florida

The case arose when Ms. Heather Worley tripped and fell at a YMCA parking lot. We did not represent the plaintiff, but according to the court’s records, following her fall she twice went to the emergency room of Florida Hospital East, where she was eventually advised to see an orthopedist. However, she did not go to a specialist for a month or two after the accident because she did not have enough money to pay for the appointment nor any health insurance.

Instead, she hired a lawyer who referred her to Sea Spine Orthopedic Institute, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia. Her lawyers then sued the YMCA

to recover the costs of her treatment by those healthcare providers and compensation for her pain and suffering. Her specialists agreed to treat her pursuant to letters of protection (LOPs), meaning they would bill her case for payment to be remitted by her at the end of her settlement.

This began as a relatively routine trip-and-fall case, but the lawyers for the YMCA repeatedly attempted to discover the relationship between Ms. Worley’s lawyers and her treating physicians. At her first deposition, the YMCA’s lawyers asked her if she was referred to her specialists by her attorneys, to which her lawyers properly objected on the ground of attorney-client privilege. Not satisfied with this, the YMCA then propounded by three sets of interrogatories, which are written questions that require a sworn answer about the specific doctors who saw her at Seaspine, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia, and a supplemental request to produce documents, directed to her lawyers, all in a spectacular effort to prove some kind of referral relationship between her personal injury attorneys and her treating physicians, based upon what was probably a well-founded suspicion that there was some kind of understanding between her doctors and lawyers, due in part to the amount of her medical bills.

Obtaining Discovery in a Slip and Fall Accident Case

Of course, her lawyers objected to this discovery, claiming that it was “overbroad, vague, unduly and financially burdensome, irrelevant, and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4).”  Furthermore, her lawyers argued that they did not keep the “information for treating physicians as in this matter, or otherwise.”

Despite these objections, a hearing was held, and the trial court sustained, agreeing with the plaintiff and ordering that she did not need to respond to the question of how she was referred to her doctors. At a second deposition, the YMCA again asked her how she was referred to her doctor, and again her attorney objected on the ground of attorney-client privilege.

The YMCA then sent very specific discovery that is permitted under the case law of Allstate Ins. Co. v. Boecher, known as Boecher Discovery. This kind of discovery is specifically permitted and allows defendants to unravel and examine the financial relationships between lawyers and expert medical providers, to prove a potential bias in the manner in which a plaintiff may be treated or diagnosed–in other words, to try to prove that the lawyers and doctors are in concert financially.((The Fifth District Court of Appeal relied on decisions that have held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable, if evidence of a referral relationship can be shown. ))

This, of course, led to a second hearing before the trial judge, where this time the court ordered the plaintiff’s lawyers to produce, within 30 days, two types of discovery materials for the period between three years prior to and six months after her accident, designed to show a relationship between the lawyers and her doctors. Additionally, the trial court ordered, “[i]f the health care provider doesn’t have it, then the law firm is to produce it,” but did not specify which party had to incur the costs of complying with the order.

Filing a Motion for Reconsideration

A motion for reconsideration was filed, arguing that the information was protected by attorney-client privilege and that compliance with the order “would be overly burdensome, if not impossible,” requiring over 200 hours of attorney review and the need “to manually search hard-copy files” at an estimated cost of $94,010. The trial court summarily denied the motion.

The plaintiff then filed a petition to Florida’s Fifth District of Appeal claiming that the trial court’s order requires the production of information that would be necessarily protected by the attorney-client privilege. Not surprisingly, the conservative appellate judges at the 5th DCA sided with the trial court and held that it was appropriate for the YMCA to ask the plaintiff if she was referred to the relevant treating physicians by her counsel or her counsel’s firm.

It also found no error regarding the trial court’s order for her to comply with the YMCA’s supplemental request to produce.

The issues were then presented to Florida’s Supreme Court, specifically whether the attorney-client privilege protects plaintiffs from disclosing that their lawyers referred them to a doctor for treatment and whether those lawyers can be forced to produce documents relating to a possible referral relationship between the firm and its client’s treating physicians.  However, the Supreme Court disagreed and found that the relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and its retained expert because the law firm is simply not a party to the litigation.

Supreme Court’s Ruling in Slip and Fall Case

While proving bias is permissible, the Supreme Court held that it can be established by providing evidence of a letter of protection (LOP), which may show that the doctor has a financial interest in the outcome of the case. Medical bills that are higher than normal can be presented to dispute the physician’s testimony regarding the treatment and the appropriate amount of damages.
Allowing the defense’s lawyers to ask her if her lawyers had referred her to her specialists would necessarily invade the attorney-client privilege, the oldest confidential communication privilege known in the law. Under this sacred principle, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications made while rendering legal services. Therefore, whether a plaintiff’s attorney referred him or her to a doctor for treatment is clearly protected by the attorney-client privilege.

Contacting an Attorney for a Slip and Fall Accident Claim

I applaud this decision and see it as a major victory for those injured in Florida, the lawyers who represent them, and the health care providers who treat them. I am proud of our Supreme Court for having come down firmly on the side of the injured and for holding the sanctity of the attorney-client privilege inviolate.

If you have been hurt by slipping, tripping, or falling in a Florida grocery store, big-box retailer, shopping mall, gas station, motel, hotel, or at a theme park, it is very important for you to consult with an experienced personal injury law firm. Our Miami attorneys proudly represent individuals and their families across the state of Florida and work strictly on a contingency-fee basis. That means we accept no payment unless we are successful in obtaining a settlement or verdict for our clients.
We are available to meet with you and discuss your Slip and Fall Accident at your home, office, hospital, or by telephone, email at, Facetime, or SKYPE. Call us today toll-free at 1-866-597-4529, locally at 305-441-0440, and speak with a Miami personal injury lawyer who is passionate about protecting your legal rights.