CRYSTAL OSWALD, APPELLANT,
v.
MARK DIAMOND, APPELLEE
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Crystal Oswald sought certiorari review of a discovery order compelling release of her medical records in a child custody case where she claimed psychotherapist-patient privilege. The court partially reversed, holding that while psychotherapist-patient privilege protects mental health treatment records, non-mental-health medical records remain discoverable, and mere allegations of mental instability do not waive the privilege.
The court held that petitioner is entitled to the psychotherapist-patient privilege to the extent that records concern diagnosis or treatment of mental or emotional condition, and that mere allegations of mental instability or the act of seeking custody do not waive the privilege. However, Florida does not recognize a general doctor-patient privilege, so non-mental-health medical records remain discoverable.
[1] A nonfinal discovery order may be reviewed by writ of certiorari when a trial court departs from the essential requirements of law and review on appeal would be inadequat…
[2] A party seeking custody does not waive the psychotherapist-patient privilege simply by seeking custody or by making allegations of mental or emotional instability.
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Join FLexlaw to unlock all legal intelligence“Orders permitting discovery may be reviewed by writ of certiorari when a trial court departs from the essential requirements of law and review on appeal would be inadequate.”
Establishes the standard for certiorari review of discovery orders
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Join FLexlaw to unlock all legal intelligenceCrystal Oswald was involved in a child custody case and invoked psychotherapist-patient privilege to protect her medical records. The trial court gran…
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WENTWORTH, Senior Judge.
Crystal Oswald filed a Petition for Writ of Certiorari seeking review of a nonfinal discovery order. She asserts that the trial court erred in granting respondent’s motion to compel her to release her medical records in a child custody case where she invoked the psychotherapist-patient privilege available under section 90.503, Florida Statutes.
We affirm in part and reverse in part the trial court’s nonfinal discovery order. Orders permitting discovery may be reviewed by writ of certiorari when a trial court departs from the essential requirements of law and review on appeal would be inadequate. City of Williston v. Roadlander, 425 So. 2d 1175 (Fla. 1st DCA 1983). We conclude that the court in the present case departed from the essential requirements of law by permitting discovery of petitioner’s medical records despite her claim of the psychotherapist-patient privilege. See McIntyre v. McIntyre, 404 So. 2d 208 (Fla. 2d DCA 1981), and Mohammad v. Mohammad, 358 So. 2d 610 (Fla. 1st DCA 1978) (holding that a spouse does not make his or her mental condition an “element of his or her defense,” thereby waiving the psychotherapist-patient privilege, simply by seeking custody). In Peisach v. Antuna, 539 So. 2d 544 (Fla. 3rd DCA 1989), the court further held that mere allegations of mental or emotional instability are insufficient to place the custodial parent’s mental health at issue so as to overcome the privilege.
Petitioner’s affidavit filed below states that Dr. Browning was engaged in the treatment of her mental or emotional condition and was therefore a psychotherapist as defined in section 90.503(l)(a), Florida Statutes. We find accordingly that petitioner is entitled to the statutory privilege to the extent of such treatment or diagnosis. However, as respondent correctly alleges, Florida does not recognize a general doctor-patient privilege. Fidelity and Casualty Co. of New York v. Lopez, 375 So. 2d 59 (Fla. 4th DCA 1979). Section 90.503(2), Florida Statutes, provides:
A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of his mental or emotional condition, including alcoholism and other drug addictions, between himself and his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
The statute does not restrict discovery of relevant medical records other than those made for the purpose of diagnosis or treatment of a mental or emotional condition. The trial court’s order granting the motion to compel is reversed to the extent that it may compel discovery of communications or records of Dr. Browning made for the purpose of diagnosis or treatment of petitioner’s mental or emotional condition, including any diagnosis made and advice given in the course of that relationship. To the extent that any other relevant medical testimony and reports may be contemplated the order is affirmed.
SMITH and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996)…otherapist-patient privilege, merely by seeking child custody. Further, “mere allegations of mental or emotional instability are insufficient to place the custodial parent’s mental health at issue so as to overcome the privilege.” Oswald v. Diamond, 576 So. 2d 909, 910 (Fla. 1st DCA 1991). See also Mohammad v. Mohammad, 358 So. 2d 610, 613 (Fla. 1st DCA 1978); Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d DCA 1992); Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989); Roper v. Roper, 336 So. 2d 654,…
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Camilla B. Zarzaur v. Zarzaur, 213 So. 3d 1115 (Fla. 1st DCA 2017)…ications and records of mental health treatment or diagnosis. The issue is whether, and to what extent, it applies here. A court cannot set aside the privilege on the basis of “mere allegations of mental or emotional instability.” Oswald v. Diamond, 576 So. 2d 909, 910 (Fla. 1st DCA 1991). Any invasion of the privilege must be limited to what is demonstrably necessary on the facts of each case. Further, where parenting is at issue, “[w]hat is relevant to the trial court’s determination regarding child custody…
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Ricketts v. Ricketts (Fla. 2d DCA 2020)…, 'mere allegations of mental or emotional instability are insufficient to place the custodial parent's mental health at issue so as to overcome the privilege.' " Leonard v. Leonard, 673 So. 2d 97, 99 (Fla. 1st DCA 1996) (quoting Oswald v. Diamond, 576 So. 2d 909, 910 (Fla. 1st DCA 1991)). And while the - 7 - occurrence of a "calamitous event" would likely place a party's mental health at issue, there is no such event in this case. See Koch, 961 So. 2d at 1134 (quoting Attorney Ad Litem for D.K. v. Parent…
Authorities Cited
- Fid. & Cas. Co. OF NEW York v. Lopez, 375 So. 2d 59 (Fla. 4th DCA 1979)
- McINTYRE v. McINTYRE, 404 So. 2d 208 (Fla. 2d DCA 1981)
- City OF Williston v. Roadlander, 425 So. 2d 1175 (Fla. 1st DCA 1983)
- Peisach v. Antuna, 539 So. 2d 544 (Fla. 3d DCA 1989)
- Mahmood Mohammad v. Shala Mohammad, 358 So. 2d 610 (Fla. 1st DCA 1978)