The Deposition of the Plaintiff in a Florida Medical Malpractice Claim: The Attorney Client Privilege

Depositions of plaintiffs are supposed to be simply sworn interviews by lawyers who represent the defendants in civil cases. The purpose is to question the claimants, evaluate their credibility and jury appeal, and to learn about their background, education, and understanding of the facts of the case and damages.

Over the last 25 years I have attended hundreds if not thousands of these legal proceedings. Some have lasted no more than an hour, and others have gone on for days. Often they are pleasant; however, on occasion they can be quite brutal for the witnesses as well as the lawyers defending them.

Recently a Florida medical malpractice claim was filed against a hospital in Homestead, a South Miami-Dade County facility, by a family on behalf of a boy born with severe disabilities. The mother alleged that the disability was caused by either the inappropriate care she received while pregnant or medical malpractice that occurred during her son’s birth.

The mother was questioned by the hospital’s medical malpractice defense lawyers. The questions asked are typical of those we are encountering more frequently in not just medical malpractice cases, but also car accident claims, slip and falls, and lawsuits brought by passengers injured in cruise ship accidents.

In every personal injury case, the claimant’s medical records from before, during, and after the alleged incident become crucially important evidence. Skilled defense lawyers will go through thousands of pages of records looking for any inconsistencies in the history given after the incident, in discovery answers like interrogatories, or in the plaintiff’s deposition. The classic smoking gun emerges when the plaintiff has failed to disclose a prior accident, claim, or similar injury to the complaints claimed in the litigation.

Generally, whenever a plaintiff in a personal injury lawsuit consents to disclose personal medical records, those records, bills, and other documents become discoverable. This usually means only that the defense lawyers can obtain and review them, not necessarily that the defendant can have those documents admitted and presented to a jury at trial.  

In the Homestead proceeding, during the course of the mother’s deposition, defense counsel attempted to elicit answers from her regarding previous pregnancies that had been terminated as well as which lawyers she had consulted with, and when–purportedly to discover whether or not the claim was in fact barred by Florida’s prevailing medical malpractice statute; this questioning occurred over the objections of her lawyers. Florida’s medical malpractice statute of limitations for medical malpractice is two years “from the time the incident giving rise to the action occurred or within two years from the time the incident was discovered, or should have been discovered with the exercise of due diligence.”

These discovery disputes were brought to the attention of the trial court, who ordered that the questions and answers be limited to only where and when the terminations had occurred, specifying that the information be kept confidential.

Florida’s Attorney-Client Privilege Law in a Deposition

The trial court also ordered that the mother could be questioned about where and when her previous pregnancies had been terminated, provided that the information was confidentially maintained. Unfortunately, the trial court also ordered the mother to answer “all questions related to . . . when she first sought legal counsel, the names of the attorneys with whom she consulted, and the reasons why she first sought legal counsel and any subsequent counsel.”  Thankfully, her attorneys appealed those horrendous rulings.

According to court records, the mother testified in her deposition that she first believed that her son’s conditions were possibly caused by medical negligence in 2012. The hospital’s lawyers, however, produced documentation from other law firms that she had apparently retained before that, requesting medical records and filing a petition for compensation under The Florida Birth-Related Neurological Injury Compensation Association (NICA)–which would have potentially barred her malpractice claim–which in turn is purportedly why the questions about the timing and reasons for her previous lawyer consultations were being asked.

The United States Supreme Court and Florida’s Evidence Code have had made it perfectly clear that the content of all communications between an attorney and client are privileged and not discoverable; however, the dates, places, and names of consulted attorneys are not privileged and are discoverable.

In this case, however, the trial judge erroneously ordered that “all questions related to . . . the reasons why she first sought out legal counsel and any subsequent counsel,” needed be answered, a requirement the appellate court found to be “overly broad” and “… having the potential to stray into privileged and confidential communications.”  Furthermore, the appellate court properly ruled that although the mother could answer questions about what she learned concerning the potential causes of her child’s condition from sources other than her attorneys, she could not be forced to answer questions that would require her to reveal the contents of advice or information she received from her lawyers.

However, the court went on to draw a frightening distinction, permitting the mother to answer questions regarding her “intentions, thoughts, and general motivations for seeking legal counsel”–as long as that information was not based upon initial or subsequent communications with her lawyers.

Litigating claims in Florida’s state and federal courts on behalf of injured people has become increasing complex since I began practicing law in 1991. Rarely do I read a case from either a Florida appellate court or Federal court of appeals that falls in favor of the injured person.  

The case above drives a small but perceptible crack in what I believe should be an impenetrable shield of protection provided by what is customarily considered to be attorney client privilege.  While it was not the subject of this case or the published opinion, I am curious to know when Homestead Hospital first contacted their lawyers and why. I wonder if those questions had been asked of their corporate-designated witness whether they would have been freely answered or objected to as well.

This case also magnifies the importance of seeking immediate legal consultation with a qualified and experienced medical malpractice lawyer If you have been injured by a careless doctor, or hospital in Florida, since the statute of limitations is used repeatedly to ensure that injured patients are not allowed to receive fair and just compensation. While this case is still pending, it is possible and in fact likely that Homestead Hospital will seek to dismiss the child’s entire claim based on a blown statute of limitations.

For over 25 years, our Florida injury law firm has fought to protect the legal rights of injured patients and their families when they have been hurt, maimed, and killed by careless healthcare providers. We have handled numerous Florida medical malpractice claims for our clients and are ready to help your receive the compensation you deserve. Contact us today for a free initial consultation–by telephone at 1-866-597-4529 or 305-441-0440, email at [email protected], or SKYPE.  We are ready to help.

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¹ MISTY MOBLEY, etc., et al., Petitioners, vs. HOMESTEAD HOSPITAL, INC., et al., Respondents. 3rd District. Case No. 3D15-1902. L.T. Case No. 13-34634. Opinion filed July 20, 2016.

² Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (holding mere knowledge of an injury is not enough to trigger the running of the statute of limitations; rather, a plaintiff must also have “knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.”).

³ The Florida Birth-Related Neurological Injury Compensation Association (NICA) was created by the Florida Legislature in 1988. NICA is a statutory organization that manages the Florida Birth Related Neurological Injury Compensation Plan (“Plan”) used to pay for the care of infants born with certain neurological injuries.

4 Upjohn Co. v. United States, 449 U.S. 383 (1981) and § 90.502, Fla. Stat. (2016)

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