(2) 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 the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the 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.2Moreover, pursuant to section 394.4615, Florida Statutes (2015), clinical records maintained by psychotherapists are shielded by a broad cloak of confidentiality; the statute carves out specific instances wherein disclosure of information from patient records shall or may be released. The intent behind the enactment of the psychotherapist-patient privilege is to encourage individuals suffering from mental, emotional, or behavioral disorders to seek out and obtain treatment without fearing public scrutiny and enable those individuals experiencing such problems to obtain proper care and assistance.4***
(4) There is no privilege under this section:***
(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.3
Section 90.503(4)(c), Florida Statutes (2015), one of the statutory exceptions to the privilege, stems from the notion that a party should be barred from using the privilege as both a sword and a shield, that is, seeking to recover for mental and or emotional damages on the one hand, while hiding behind the privilege on the other.5 For example, when a plaintiff seeks recovery for mental anguish or emotional distress, Florida courts generally hold that the plaintiff has caused his or her mental condition to be at issue and the psychotherapist privilege is therefore, waived.6 The statutory privilege is also deemed waived where a party relies on his or her post-accident mental or emotional condition as an element of a claim or defense.7 Failure to timely assert the privilege does not constitute waiver, so long as the information already produced does not amount to a significant part of the matter or communication for which the privilege is being asserted.8 The waiver provision contained in section 90.507, Florida Statutes (2015) will apply, however, when information previously produced in discovery is considered a substantial part of the patient’s claim of privilege.9 Limited voluntary disclosure of some aspects of the psychotherapist-patient privileged matters or communications will not constitute a waiver.10
The exception to the privilege does not apply merely because the patient’s symptoms accompanying a physical injury are of a type which might arguably be associated with some separate mental or emotional condition.11 In addition, a claim for 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.”12
The party seeking to depose a psychotherapist or obtain psychological records bears the burden of showing that the patient’s mental or emotional condition has been introduced as an issue in the case.13 What is more, if a plaintiff has not placed his or her mental condition at issue, the defendant’s sole contention that the plaintiff’s mental stability is at issue will not overcome the privilege.14
The privilege does not protect from discovery any relevant medical records of a psychiatrist or other medical provider made for the purpose of diagnosis or treatment of a condition other than mental or emotional ailments.15 Thus, relevant medical records that do not pertain to the diagnosis or treatment of a mental, emotional or behavioral disorder are not privileged and should be produced even if they are maintained by a psychiatrist. On the other hand, records made for the purpose of diagnosis or treatment of a mental, emotional or behavioral conditions that may contain other medical information, such as physical examinations, remain privileged and are not subject to disclosure.16
Florida law recognizes that a plaintiff who has incurred a physical injury may allege and prove physical pain and suffering as an element of a claim for monetary damages.17 The term “pain and suffering” has not been judicially defined, however, Florida courts have provided a number of factors that may be considered by the trier of fact in awarding damages for pain and suffering.18 These factors recognize that pain and suffering has a mental as well as a physical component. Physical pain and suffering, absent mental anguish, can impair the enjoyment of life.19
Section 90.503(2) specifically applies to communications and records “including alcoholism and other drug addiction.” In the cases noted below, the trial court allowed discovery of defendant driver’s treatment for drug addiction post-accident, inasmuch as the complaint alleged that the defendant driver was under the influence of drugs and alcohol at the time of the accident, other discovery supported that allegation, and defendant’s answer denied being under the influence. On review, the appellate courts stated that the defendant did not abrogate the privilege by denying the allegations of the complaint, the plaintiff did not establish the existence of any of the other exceptions to the privilege, and they granted certiorari, and quashed the orders.20
It is worth noting that in David J. Burton, D.M.D., P.A. v. Becker, 516 So. 2d 283 (Fla. 2d DCA 1987) the court held that medical records of the physician’s treatment for drug abuse were subject to disclosure in a medical malpractice case, because section 397.053(2), Florida Statutes (1985), permitted a court to order disclosure of drug treatment records when good cause is shown.
However, Section 397.053 was repealed effective October 1, 1993. The 2009 amendment to Chapter 397 contains section 397.501, which provides for the rights of clients receiving substance abuse services. Subsection 397.501(7)(a)5, provides for the confidentiality of records, with the following exceptions:
(a) The records of service providers which pertain to the identity, diagnosis, and prognosis of and service provision to any individual are confidential in accordance with this chapter and with applicable federal confidentiality regulations and are exempt from s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution. Such records may not be disclosed without the written consent of the individual to whom they pertain except that appropriate disclosure may be made without such consent: …….Consider Brown v. Montanez, 90 So. 3d 982, (Fla. 4th DCA 2012) where the Court held that where the criminal defendant was sent to drug related treatment as a result of his bond and not as a negotiated criminal plea agreement with the Court, there had been no Court ordered examination of the mental or emotional condition of the patient under § 90.503(4)(b), Fla. Stat. (2011).
………5. Upon court order based on application showing good cause for disclosure. In determining whether there is good cause for disclosure, court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the individual, to the service provider and the individual, and to the service provider itself.
