The Third District Court of Appeal State of Florida (“Appellate Court”) filed an opinion on June 22, 2016 in a medical malpractice case where the trial court had ordered the plaintiff to disclose to the defense during her deposition communications that she had with her prior medical malpractice attorneys.
The question on appeal was to what extent the plaintiff should be required to disclose communications that she had with medical malpractice attorneys regarding when she first became aware that she may have a cause of action against the defendants regarding the birth of her child who was subsequently diagnosed with cerebral palsy.
The plaintiff gave birth to her daughter on July 16, 2005. The daughter was diagnosed with cerebral palsy by a neurologist in early 2007. On April 30, 2013, prior to her daughter’s eighth birthday, the plaintiff petitioned to extend by ninety days the statute of limitations for filing a medical malpractice action against the hospitals, clinics, and doctors involved in her daughter’s birth. § 766.104(2), Fla. Stat. (2013).
After filing her notice of intent to initiate litigation for medical malpractice, the plaintiff filed her Florida medical malpractice lawsuit in November 2013. The Florida statute of limitations for medical malpractice cases is two years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence. § 95.11(4)(b), Fla. Stat. (2013). The Florida Supreme Court has interpreted this language to mean not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.
The defendants deposed the plaintiff to investigate when she first comprehended a reasonable possibility that her daughter’s injury was caused by medical malpractice. They questioned the plaintiff about what lawyers she consulted regarding her daughter’s condition, when she consulted them, and why she consulted them. She declined to answer the questions after testifying that her current medical malpractice lawyer was not the first attorney she consulted.
The defense obtained a court order compelling the plaintiff to answer all questions related to the following issues: (a) “when she first sought legal counsel”; (b) “the names of the attorneys whom she consulted with”; and (c) “the reasons why she first sought out legal counsel and any subsequent counsel.” The plaintiff appealed the order to compel to the Appellate Court.
The Florida Evidence Code addresses the attorney-client privilege and states, “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” § 90.502(2), Fla. Stat. A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication. § 90.502(1)(c), Fla. Stat.
The Appellate Court stated that the attorney-client privilege protects only communications to and from a lawyer; it does not protect facts known by the client independent of any communication with the lawyer, even if the client later tells the fact to the lawyer (the communication between the attorney and client is privileged, but the underlying facts are discoverable).
The Appellate Court held that the trial court’s order to divulge the names of attorneys and dates of consultation is limited to those attorneys that the plaintiff consulted regarding possible legal remedies stemming from her daughter’s condition. On their face, these questions do not require her to disclose any communication she had with any attorney; they merely require her to disclose the occurrence of a consultation with a lawyer regarding a general topic.
The Appellate Court concluded that requiring the plaintiff to reveal when and with whom she consulted for the general purpose of discussing possible legal remedies stemming from her daughter’s condition does not, on the record before the Appellate Court, implicate the attorney-client privilege, even though she is revealing in general terms her purpose for scheduling and attending the consultation.
However, the Appellate Court further held that the trial court’s order for the plaintiff to “answer all questions related to . . . the reasons why she first sought out legal counsel and any subsequent counsel” allows inquiry into confidential communications between the plaintiff and attorneys. These communications of legal advice from the lawyer to the plaintiff would be protected by the attorney-client privilege, yet the trial court’s order as drafted would require the plaintiff to divulge these privileged communications.
The Appellate Court held that while the plaintiff can be required to answer factual questions about what she learned at various points in time concerning the nature and potential causes of her daughter’s condition from sources other than the attorneys that she consulted, she cannot be forced to answer questions that would require her to reveal the contents of advice or information she received from the attorneys.
Source Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966.
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