Florida Appellate Opinion Looks at Attorney-Client Privilege in Medical Malpractice Case

In Coffey-Garcia v. South Miami Hospital, Inc. (No. 3D15-1966), the appellate court reviewed an order that compelled the mother of a child diagnosed with cerebral palsy to answer deposition questions about any lawyers she consulted related to the medical malpractice action she filed as an individual and on behalf of her daughter. The defendants requested the order from the trial court after the mother acknowledged that she had spoken with an attorney prior to the one she retained as counsel for the current litigation. The defendants felt that if the mother had spoken with another attorney or other attorneys long before filing the suit, the statute of limitations may have run on the action.

Secret ShelvesIn this case, the daughter was born at the hospital in 2005 and was diagnosed with cerebral palsy in 2007. The lawsuit was not filed until April 30, 2013. Under the Florida statute of limitations, a medical malpractice action must be filed within two years from the time the incident occurred or within two years from the time the incident was discovered or should have been discovered. The defendants argued that they had a right to know whether this had passed, and they deposed the mother to learn when she first really understood that her child’s injury was caused by malpractice. The mother refused to answer the questions, citing attorney-client privilege, and the defendants sought an order from the trial judge to compel her to answer the questions about when she first sought legal counsel, the names of the attorneys she consulted, and the reasons why she sought legal counsel and any subsequent counsel.

The appellate court first looked at the right of a client to have her or his communications with an attorney remain confidential. The right in this case is granted by the Florida Evidence Code in § 90.502, Fla. Stat. (2013), under which the client has the privilege to refuse to disclose, and prevent others from disclosing, the contents of confidential communications when another person learns they were made while legal services were being provided to the client. The court noted that underlying facts that are independent of any communication with a lawyer are discoverable, but not the actual communication with the attorney.

The court ruled that the part of the order requiring the mother to reveal when and with whom she consulted for the general purpose of discussing possible legal remedies did not implicate the attorney-client privilege. However, the court did not agree with the third part of the directive, which required the mother to answer all questions as to the reasons why she first sought out counsel and any subsequent counsel. The court felt that this part went into the confidential communications between the mother and the lawyers she consulted. The appellate court quashed that part of the order and denied the rest of the petition.

The Florida personal injury attorneys at Donaldson & Weston know how aggressive defendants can be in order to avoid liability. Our attorneys will work tirelessly to push back against defense tactics and seek to maximize all damages available in your case. For a free, confidential consultation, call our office at 772-266-5555 or 561-299-3999.

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