The Shield and the Sword: Regarding Disclosure of Private Psychiatric Records as a Routine Element of Discovery in Florida Auto Accident Litigation
- Regardless of the mechanics of a particular automobile accident, complaints in automobile injury cases often allege damages using the same library of terms: pain and suffering, emotional distress, disfigurement, possibly lost wages, future loss of earning capacity, etc. These terms are relatively broad, and, therefore, can be used to encompass a variety of afflictions.
For example, “pain and suffering” could be construed to include virtually any physical problem that happens to result from an accident, as well as mental or emotional “suffering.” “Emotional distress” and “mental anguish” may likewise manifest themselves in any number of ways. This flexibility of terms is rather useful in that it avoids unintentional exclusion of claims for injuries that may not be apparent to an attorney at the time the suit is filed. The injuries can be sorted out during discovery, and the parties are spared the hassle of amending the pleadings later in the process.
Since damages allegations are often ambiguous and may refer to a variety of physical, mental, and emotional conditions, the prudent defense lawyer presented with such broad allegations may decide to seek production of not only medical but also psychological or psychiatric records of the plaintiff. The underlying rule in Florida is set forth in F.S. §90.503: Communications between a patient and his or her psychotherapist are privileged. When a party relies on a mental or emotional condition as an element of his claim or defense, however, the privilege does not apply. This article provides a review of Florida jurisprudence regarding the right of a party, particularly a defendant, to discover this type of evidence.
Appellate courts in Florida, particularly the Third District, have held that a plaintiff who makes a claim for general mental anguish automatically opens the door to a request for psychotherapeutic records. In contrast, both federal and foreign state courts generally have been hesitant to allow disclosure of psychotherapeutic records. Florida’s First District, in Olges v. Dougherty, 856 So. 2d 6 (Fla. 1st DCA 2003), recently quoted two plaintiff-friendly federal decisions, possibly signaling a departure from the hard-line Third District view.
The Third District Rule: Arzola and Scheff
The Third District announced its position on mandatory psychological records disclosure in Arzola v. Reigosa, 534 So. 2d 883 (Fla. 3d DCA 1988), followed shortly by the similar Scheff v. Mayo, 645 So. 2d 181 (Fla. 3d DCA 1994). In each of these cases, the per curiam opinions set forth a cut-and-dry rule: If a plaintiff brings a claim for mental anguish, his or her psychological records are relevant and must be disclosed to the defendant. While this approach is not lacking in efficiency, its public policy implications are dramatic.
The court in Arzola stated that its decision is based on the “indistinguishable” authority of Yoho v. Lindsley, 248 So. 2d 187 (Fla. 4th DCA 1971), from the Fourth District Court, and Haney v. Mizell Memorial Hospital, 744 F.2d 1467 (11th Cir. 1984), a decision of the 11th Circuit. Of these two cases, only Yoho was decided by a Florida court. Moreover, the only Florida case cited on this issue by the federal court in Haney had nothing to do with psychological records, and that decision provided no other explanation for its statement of applicable law.2 A review of the Yoho case likewise reveals little similarity with Arzola or Scheff, either in analysis or outcome.
A Peculiar Solution: Yoho v. Lindsley
As noted, Yoho v. Lindsley is cited as foundational authority by the Third District in both Arzola and Scheff. Although both of those decisions purport to apply the rule of Yoho, that case actually carved out a much more procedurally complex solution to the question at hand. The Yoho court allowed a psychotherapist to essentially serve as a gatekeeper in determining what evidence would be admissible.3 The merits of this approach are considerable; after all, who would be better equipped to decide what evidence might be related to a particular condition than the treating therapist? On the other hand, it is doubtful that a therapist could perform this function in a neutral manner, and giving this unusual responsibility to the therapist could corrupt his or her relationship with the patient. Even without the added procedural wrinkle, the essential point is that the court was willing to distinguish relevant from nonrelevant evidence before simply opening the floodgates to all potentially relevant, confidential information.
In Yoho, the auto accident plaintiff claimed that she had suffered and would continue to suffer both physically and mentally, and that she had suffered headaches and would continue to suffer from them.4 Note that these allegations are somewhat different than the standard list described above. When the plaintiff’s treating psychiatrist, at counsel’s instruction, refused to allow inspection or disclosure of either pre- or post-treatment records, the defendant filed a motion to compel, and plaintiff responded with a motion for protective order.5 In ruling on the dispute, the trial court crafted an original and somewhat peculiar solution. It ordered the psychiatrist to answer all of the defendant’s relevant questions, with this limitation:
[I]f Plaintiff’s counsel should object on grounds that the material sought after, which may be either in the doctor’s records or his personal knowledge, is irrelevant and privileged, [the doctor] shall state 1) the general nature of the subject matter involved and 2) why, in his opinion, the subject matter sought after is not relevant, in order to assist the [c]ourt in later rulings on certified questions.6
Predictably, the defendant objected on the grounds that the ruling allowed the plaintiff’s attorney and doctor to determine the question of relevance, and filed a petition for writ of certiorari on that basis.7 According to the appellate court, the trial court had kept the relevancy determination within its own ultimate discretion, as it must, and the procedure involving the doctor’s opinion was merely meant to advise the court in making the relevancy decisions later.8
The appellate court then turned its attention to the construction and interpretation of the psychiatrist-patient privilege, which at that time was a matter of first impression.9 For guidance, the court turned to an “exhaustive” treatment of the issue by the California Supreme Court in In re Lifschutz, 467 P.2d 557 (Cal. 1970), which involved a claim for damages arising out of an assault.10 In that case, the California court had expressed a great deal of concern for preservation of the privilege when appropriate, but tempered that concern with acknowledgement of the necessity for adequate discovery:
The psychiatric patient confides more utterly than anyone else in the world…. It would be too much to expect them to do so if they knew that all they say – and all the psychiatrist learns from what they say – may be revealed to the whole world from the witness stand….11 [T]he whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.12
The Fourth District in Yoho went on to determine that the key to unlocking records under the trial court’s novel system lay in defining “relevant communications.”13 In Lifschutz, the California court appeared to allow disclosure of only those communications “concerning the very injury or impairment that was the subject matter of the litigation” and noted that broad disclosure might effectively deter psychotherapeutic patients from bringing general claims for damages.14
Ultimately, in rejecting the writ of certiorari, the Yoho court presented a two-part rule.15 First, the party seeking to depose a psychotherapist has the burden to show that the patient’s mental condition has been introduced and that this would be evidenced when the patient discloses “ailments” by bringing an action in which they are at issue.16 Second, in cases where the patient objects to discovery of communications between patient and therapist, the burden should be on the patient to show that a given communication is not directly related to his or her claim.17
In the latter situation, the court suggested that future courts should look to the various protective measures discussed in Lifschutz in making the threshold determination of relevancy while safeguarding the communications.18 The Yoho court cited numerous passages from Lifschutz stating that a party may inquire into only those communications directly relevant to the nature of the specific mental or emotional condition that has been voluntarily disclosed.19 Thus, it may be said that the Yoho court espoused a more cautious system of disclosure than that set forth in Scheff and Arzola.
The Legacy of Arzola
Shortly after Scheff was decided, the Fifth District considered similar discovery issues in Nelson v. Womble, 657 So. 2d 1221 (Fla. 5th DCA 1995). That case involved allegations that the plaintiff was injured by defendants and suffered mental anguish and loss of capacity for enjoyment of life.20 The plaintiff’s husband also made a claim for loss of consortium.21 Both plaintiffs sought counseling after the injuries, and defendants sought to see the counselor’s notes and records.22 The court stated that since the plaintiffs were seeking compensation for mental anguish and loss of consortium, the injured plaintiff’s mental and emotional condition were at issue and the records of both plaintiffs were discoverable.23
In explaining its holding, the court interpreted F.S. §90.503, which sets forth the privilege, and held that the situation before it fell into the exception set forth in subsection (4)(c).24 That section essentially states that there is no protection for communications relevant to an issue of the mental or emotional condition of a patient who has relied on that condition as an element of his or her claim. The statute does not explain whether general allegations (mental anguish, emotional suffering, etc.) are sufficient to pierce the privilege, or whether this should be allowed only where “specific conditions” are alleged, as was apparently contemplated in Yoho. Citing Scheff and, indirectly, Arzola, the Nelson court simply held that since the records could be relevant to an issue in the case, they were discoverable. With this direct application of a clear-cut rule, it became increasingly obvious that a balance-of-interests approach, as suggested in Lifschutz and Yoho, was fading further and further into the rearview mirror of Florida jurisprudence.
A “New” Perspective: Olges v. Dougherty
Recently, the First District Court in Olges v. Dougherty, 856 So. 2d 6 (Fla. 1st DCA 2003), signaled a difference of opinion on the issue. Olges involved an auto accident plaintiff who brought a claim for damages including bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish,25 loss of capacity for enjoyment of life, and others.26 When the defendant sought to compel a mental examination, the plaintiff withdrew all claims for lost earning capacity, mental anguish, past and future emotional distress, and other emotional damages.27 The trial court held that the examination could proceed and include a psychological clinical interview and various psychological tests, whereupon the plaintiff sought certiorari review of the ruling.28 The First District held that orders requiring mental examination cannot be adequately remedied on appeal from final judgment and granted review.29
The essential holding of the court in Olges was that the defendants asserted no basis for the requested examination, as the trial court should have required.30 The only basis for such an examination was the testimony of defendant’s expert, whom the court considered incompetent to testify on the issue.31 While this essentially disposed of the matter, the court went on in another paragraph to explicitly weigh considerations of relevance that had lain dormant since Yoho.32
First, the court stated that not every automobile accident case gives rise to good cause to require the plaintiff to undergo a mental examination.33 The court explained that once a plaintiff dropped his claims for specific mental and emotional damages, those issues were no longer in controversy.34 The court also quoted a federal case in which it was held that the presence of mental anguish and humiliation allegations alone were not enough to require a mental examination.35 In another quoted federal case, embarrassment and myofascial pain syndrome were not sufficient grounds for ordering an examination where the plaintiff did not plan to present an expert and did not allege that the embarrassment was severe or amounted to a psychotic disorder.36 With this review of federal case law, the court seemed to express conflict or at least disagreement with the open and shut Third District rule, and may have been suggesting a return to the considerations expressed in Yoho.
Foreign Concepts: A Sister State Considers the Issue
Courts outside of Florida have developed the principles set forth in Lifschutz and Yoho and have frequently prevented disclosure of psychiatric records in “run of the mill” negligence cases.
One such case is Johnson v. Trujillo, 997 P.2d 152 (Colo. 1999). There, a personal injury plaintiff asserted that the type of mental suffering for which she sought damages took many forms, including embarrassment, humiliation, worry, insult, and emotional distress. Because she had not claimed any psychiatric injury or impairment of mental faculties, the plaintiff in Trujillo contended that she had not “injected” her mental condition into the case as a basis for a claim.37 The court held that since the plaintiff did not make a claim for intentional or negligent infliction of emotional distress, had not been treated as a result of the accident, did not seek reimbursement of psychiatric treatment expenses, and did not intend to call expert psychiatric witnesses, a bare claim for mental anguish did not support disclosure of her records.38 It explained that the mental suffering for which the plaintiff claimed damages was incident to her physical injuries and did not exceed the suffering and loss an ordinary person would likely experience in similar circumstances.39
The holdings of the federal cases cited in Olges apply directly to simple auto accident cases wherein a plaintiff simply lists mental anguish as a matter of course. It seems that, by adopting the federal rulings, the First District may be instructing lower courts to exercise more care before ordering mental examinations in such cases. As was originally intended by the Yoho court, modern courts should consider whether a plaintiff has alleged any specific conditions beyond “garden variety” mental anguish before ordering disclosure of privileged records. Because the embarrassment involved in disclosure of psychiatric records is at least as damaging as that which attends an ordered examination,40 courts should make a similar determination in cases involving a request for records rather than an exam. In short, the practice of compelling discovery of all relevant records regardless of the harm should be reconsidered.
1 The title is adapted from a portion of Sykes v. St. Andrews School, 619 So. 2d 467, 469 (Fla. 4th D.C.A. 1993)(“[O]ne purpose of the … exclusionary portions of the rule … is to prevent a party from using the privilege as a sword and a shield.”), cited in Nelson v. Womble, 657 So. 2d 1221, 1222 (Fla. 5th D.C.A. 1995).
2 The court in Haney, a federal case, stated that it was applying Florida law to a dispute over admissibility of psychiatric records. However, the opinion cited only one Florida case, Argonaut Insurance Co. v. Peralta, 358 So. 2d 232, 233 (Fla. 3d D.C.A. 1978). The only relevant part of that opinion was a statement that medical records must be disclosed in a medical malpractice action. The records at issue involved plastic surgery, not psychotherapy. Peralta has since been overruled on other grounds. See Amente v. Newman, 653 So. 2d 1030 (Fla. 1995).
3 See Yoho, 248 So. 2d at 188.
6 Id. at 189.
8 Id. at 190.
10 The treatment at issue in Lifschutz was over a period of six months — 10 years before the incident that was at issue.
11 Note that the court expressed concern for protection of both statements made by the patient to his psychotherapist and for the psychotherapist’s diagnoses or conclusions. The Third District rule does not distinguish between the two, and could be construed to protect neither.
12 Lifschutz, 467 P.2d at 567 (Cal. 1970).
13 Yoho, 248 So. 2d at 191.
14 Lifschutz, 467 P.2d at 567-570.
15 Yoho, 248 So. 2d at 192.
17 Id. Because later courts have allowed discovery of psychological records automatically in mental anguish cases, it is unclear what sort of showing should be required to satisfy this burden.
19 This rule has been adopted and successfully applied by numerous foreign courts. See, e.g., Johnson v. Trujillo, 977 P.2d 152 (Colo. 1999).
20 Nelson, 657 So. 2d at 1222.
25 One is left to wonder whether the court’s holding might have been different if the plaintiff had maintained the claim for mental anguish and simply waived the more specific claims for emotional distress and other emotional damages. The federal cases cited later in the opinion may provide some insight.
26 Olges, 856 So. 2d at 8.
28 Id. at 9.
29 Id. at 10.
30 Id. at 10-11.
31 Id. at 11.
32 See id. at 12. The Fifth District has addressed a case in which the plaintiff made a claim for pain and suffering and loss of enjoyment of life due to injury, but made no claim for mental anguish. In that case, the psychotherapist’s records were not discoverable. Partner-Brown v. Bornstein, 734 So. 2d 555, 556 (Fla. 5th D.C.A. 1999)(“The allusion to loss of enjoyment of life, without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the protection of section 90.503.”).
33 Id., citing Byxbee v. Reyes, 850 So. 2d 595 (Fla. 4th D.C.A. 2003).
34 Id., citing Partner-Brown, 734 So. 2d at 556.
35 Id., citing Bjerke v. Nash Finch Co., 2000 U.S. Dist. LEXIS 22502, 2000 WL 33339658 at 1 (D.N.D. 2000).
36 Id., citing Smith v. J.I. Case Corp., 163 F.R.D. 229, 230-231 (E.D. Pa. 1995).
37 Id. at 156, citing Thiele v. Ortiz, 520 N.E. 2d 881 (Ill. App. 1988). In so holding, the court stated: “We share the concern of the state courts in Illinois, which feared that finding waivers in cases such as this would open up a ‘pandora’s box of inquiry into the mental condition of claimants.’”
38 Id. at 157.
39 Id. Besides Colorado, Alabama, Georgia, Texas, Illinois, Pennsylvania, and North Dakota have produced similar rulings.
40The Colorado Supreme Court elaborated on this issue in Johnson, stating that “unlike a court-ordered mental examination, court-ordered disclosure of confidential records related to mental health treatment undercuts the additional public interest furthered by the privileges of encouraging citizens to seek help for their emotional problems.” Johnson, 977 P.2d at 158.
David M. Lewis is an associate with Steven Kalishman, P.A., in Gainesville. His practice focuses on plaintiff’s PIP, other insurance claims, and general civil litigation.
This column is submitted on behalf of the Trial Lawyers Section, Bradley E. Powers, chair, and D. Matthew Allen, editor.