The shield and the sword regarding disclosure of private psychiatric records as a routine element of discovery in Florida auto accident litigation.

AuthorLewis, David M.

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. [section]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...

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