KRISTIN VIVEIROS, PETITIONER,
v.
GLORIA COOPER, RESPONDENT
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In a personal injury lawsuit, the trial court ordered discovery of the petitioner's substance abuse treatment records despite the petitioner's assertion of psychotherapist-patient privilege. The Fourth District Court of Appeal granted the petition in part, quashing the order to produce the treatment records and holding that the psychotherapist-patient privilege applies, while denying the petition regarding interrogatory answers.
The psychotherapist-patient privilege applies to protect substance abuse treatment records from disclosure. The exceptions under Florida law do not apply because the case did not involve hospitalization for mental health treatment or a court-ordered examination. The opposing party cannot pierce the privilege by asserting punitive damages claims or by merely claiming good cause when the privilege has been properly asserted, though good cause may be a basis for disclosure after privilege is established.
[1] A party asserting the psychotherapist-patient privilege must raise it in a timely manner, and failure to do so until a hearing may constitute error.
[2] The psychotherapist-patient privilege is not waived by the filing of a claim that makes an issue of the patient's mental health.
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Join FLexlaw to unlock all legal intelligence“Contrary to the Respondent's assertion, the exceptions set forth in sections 90.503(4)(a) and (b) don't apply. This case does not involve hospitalization of the Petitioner for mental health treatment. Additionally, although the Petitioner's treatment was pursuant to a plea agreement, that does not constitute a court-ordered examination under section 90.503(4)(b).”
Establishes that the statutory exceptions to the psychotherapist-patient privilege do not apply based on the facts of this case.
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Join FLexlaw to unlock all legal intelligenceDuring discovery in a personal injury lawsuit arising from a car accident, the respondent served interrogatories and a document request on the petitio…
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PER CURIAM.
In the midst of a personal injury lawsuit arising out of a car accident, the Respondent served the Petitioner with interrogatories and a request for production of documents. The Petitioner filed a response which contained objections to two of the interrogatories and a request for production of substance abuse treatment records, asserting various grounds none of which were the psychotherapist privilege. The Respondent moved to compel. At a hearing, the Petitioner asserted the psychotherapist-patient privilege. The trial court required the Petitioner to answer the objected to interrogatories and to produce the substance abuse treatment records. The Petitioner then filed for certiorari relief.
This Court has jurisdiction. See Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla.1995); Hall v. Spencer, 472 So. 2d 1205 (Fla. 4th DCA 1985), review denied, Spencer v. Hall, 479 So. 2d 118 (Fla.1985); Palm Beach County Sch. Bd. v. Morrison, 621 So. 2d 464 (Fla. 4th DCA 1993). We deny the petition with regards to the trial court’s order requiring the Petitioner to answer certain interrogatories. For the following reasons, we grant the petition with respect to the order requiring the Petitioner to produce records of her substance abuse treatment.
Contrary to the Respondent’s assertion, the exceptions set forth in sections 90.503(4)(a) and (b) don’t apply. This case does not involve hospitalization of the Petitioner for mental health treatment. Additionally, although the Petitioner’s treatment was pursuant to a plea agreement, that does not constitute a court-ordered examination under section 90.503(4)(b). Cf. Carson v. Jackson, 466 So. 2d 1188, 1190 (Fla. 4th DCA 1985). Further, the Respondent cannot pierce the privilege by filing a claim that makes an issue of the Petitioner’s mental health. See Morrison, 621 So. 2d at 468, (citing Hall, 472 So. 2d 1205); Cohen v. Cohen, 813 So. 2d 1060 (Fla. 4th DCA 2002). Thus, the Respondent’s argument that the privilege does not apply because Respondent made a claim for punitive damages lacks merit.
The Respondent also argued that she made a showing of good cause.1 We decline to address this issue as the trial court’s ruling was not based on good cause. Rather, the court based its ruling on the Petitioner’s failure to raise the privilege until the hearing. This was error. See Morrison, 621 So. 2d at 469; Austin v. Barnett Bank of S. Fla., N.A., 472 So. 2d 830 (Fla. 4th DCA 1985).
We grant the petition, quash the order requiring the Petitioner to produce the treatment records, and remand to the trial court. On remand, the court may require disclosure if the Petitioner fails to provide a privilege log, see TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001), rev. denied, 821 So. 2d 304 (2002), or if an in camera inspection of the records reveals that the privilege does not apply. If the court decides that the privilege applies to any of the records, it must then determine whether the Respondent demonstrated good cause for disclosure of those records.
POLEN, C.J, GROSS, and MAY, JJ., concur. . Section 397.501(7)(a)(5), Florida Statutes (2001), provides that records regarding a client’s substance abuse treatment may be disclosed without the patient’s consent ”[u]pon court order based on application showing good cause for disclosure. In determining whether there is good cause for disclosure, the court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the client, to the service provider-client relationship, and to the service provider itself."
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Cruz-Govin v. Torres, 29 So. 3d 393 (Fla. 3d DCA 2010)…e. The entiy of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law. Segarra v. Segarra, 932 So. 2d 1159, 1160 (Fla. 3d DCA 2006); see also Viveiros v. Cooper, 832 So. 2d 868, 869 (Fla. 4th DCA 2002); Palm Beach County Sch. Bd. v. Morrison, 621 So. 2d 464, 468 (Fla. 4th DCA 1993). Section 90.503(2), Florida Statutes (2009), provides that a patient has a privilege to decline to disclose information or records that are ma…
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Brown v. Nya Yanitza Montanez and Eduardo Gonzalez, 90 So. 3d 982 (Fla. 4th DCA 2012)…privilege because it is the patient who must rely on the condition for a claim or defense. Subsections (4)(a) and (4)(b) clearly do not apply. As for the treatment being a condition of Jason’s bond, Defendants point out that in Viveiros v. Cooper, 832 So. 2d 868, 869 (Fla. 4th DCA 2002), this court held the fact that the petitioner’s treatment was pursuant to a plea agreement did not make the treatment a court-ordered examination pursuant to subsection 90.503(4)(b). Neither can the party seeking discovery…
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J.B. v. The State of Fla. & Carmen Barahona, 250 So. 3d 829 (Fla. 3d DCA 2018)…ces his or her mental health at issue. Cruz-Govin, 29 So. 3d at 396. In other words, the moving party cannot "pierce the privilege" by simply lodging a claim that raises an issue regarding the patient's mental health. Id. (citing Viveiros v. Cooper, 832 So. 2d 868, 869 (Fla. 4th DCA 2002) ). Because Barahona seeks to pierce J.B.'s statutory privilege regarding her psychological records, she has the burden of demonstrating that one or more of the enumerated exceptions apply. See Brown v. Montanez, 90 So. 3d 9…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995)
- Palm Beach Cnty. Sch. Bd. & Terry Andrews v. Morrison, 621 So. 2d 464 (Fla. 4th DCA 1993)
- Austin v. Barnett Bank OF S. Fla., N.A., 472 So. 2d 830 (Fla. 4th DCA 1985)
- Carson v. Jackson, 466 So. 2d 1188 (Fla. 4th DCA 1985)
- COX v. State, 799 So. 2d 339 (Fla. 1st DCA 2001)
- TIG Ins. Corp. OF Am. v. Aben E. Johnson, Jr., 799 So. 2d 339 (Fla. 4th DCA 2001)
- Hall v. Spencer, 472 So. 2d 1205 (Fla. 4th DCA 1985)
- Cohen v. Stanford Cohen, 813 So. 2d 1060 (Fla. 4th DCA 2002)