One dilemma we often face is dealing with a client in car accident cases is that they would like us to refer them to a health care provider. The best path is always to have client direct their own medical care. But in the real world, you cannot always do this. If you do refer a client to a doctor, here are few ideas to limit the damage of the classic cross-examination question: “You lawyer referred you to this doctor, didn’t he?”
First, file a motion in limine requesting that evidence of the attorney’s recommendation be excluded as protected by the attorney-client privilege. In a Florida personal injury car accident case, Burt v. Government Employees Insurance Co., 603 So.2d 125 (Fla. Dist. Ct. App. 1992), a Florida Court of Appeal was asked to decided if the following questions were permissible from the defendant’s accident lawyer: (1) when did they obtain an accident lawyer, and (2) did their lawyer refer them to a particular doctor? The Florida court ruled that the former question did not violate the attorney-client privilege but the second question, which sought to uncover confidential conversations between the accident lawyer and the client, was a violation of the lawyer-client privilege. Cite this case, argue that a rule requiring disclosure of such information is a significant incursion into the province of the attorney-client privilege, and take your best shot.
If your motion is denied, get it out up front in the opening the reasons why the client took a lawyer referral. W hat “excuse” do you give? Ask the client. Generally speaking, injured clients have a good reason why they wanted to defer to their counsel. They may not like or even have a primary care doctor, the client’s doctor’s office may be far away, or they may struggle to get an immediate appointment. In closing argument, tell them that the defense lawyer is trying to distract you from the real issues: the doctor is qualified to treat the patient and the patient is injured.
Will this work? Obviously, if the motion in limine succeeds, the issue is taken out of play. Otherwise, the chances that these tactics will limit the damage of an attorney referral in the eyes of the jury will be directly proportional to the seriousness of the plaintiff’s injuries and, more importantly, whether the injury is objective or subjective.
A lot of injury lawyers take the position of “who cares about whether a lawyer referred the client because it should not make any difference.” They are right, it should not make a difference. But it does to a jury and, accordingly, it must matter to plaintffs’ car accident lawyers.