Attorney David I. Fuchs
Sep. 9, 2016
Many plaintiffs with legitimate and convincing personal injury claims choose not to litigate their claims, for a variety of reasons. There are those who prefer to avoid any and all further conflict with the defendant, while some simply do not recognize the legitimacy of their personal injury claims and allow the statute of limitations deadline to pass without consulting an attorney. Others are anxious about the details of their lawsuit being revealed to the public.
Though your personal injury lawsuit may only be brought against a private citizen or entity, the lawsuit itself is a matter of public interest and will therefore be part of the public record. While this may not initially seem like a serious concern, bear in mind that a defendant may request extensive medical and psychiatric records from you. If a defendant is able to compel the disclosure of psychiatric records, certain sensitive mental health information may be revealed to the general public.
In Florida, a defendant cannot compel the disclosure of psychiatric records in every personal injury lawsuit. The law provides for general protections against the broad disclosure of psychiatric records. Still, this privacy shield is not absolute.
The Florida psychotherapist privilege is established under Florida Statutes section 90.503. The privilege protects against compelled disclosure of communications between the psychotherapist and the patient.
The term “psychotherapist” under section 90.503 does not exclusively refer to the mainstream perception of a psychological “therapist.” It is attached to medical practitioners, psychologists, social workers, therapists, and other personnel who are engaged in the diagnosis or treatment of a patient’s mental or emotional condition.
Though the privilege broadly applies to confidential psychotherapist-patient communications, it is not applicable when the plaintiff makes their mental or emotional condition a component of their overall personal injury claim.
In most personal injury cases, the plaintiff alleges a variety of damages. Plaintiffs involved in a serious accident may seek to recover for their past and future medical expenses, lost wages, pain and suffering, and emotional distress.
By alleging mental and emotional distress, however, the psychotherapist-patient privilege may no longer apply. Remember, the privilege is not applicable when the plaintiff’s mental or emotional condition is a component of the overall claim.
For further clarification, let’s consider a basic auto accident example.
Suppose that you are injured in a rear-end accident. You were stopped at a red light at a busy intersection when a drunk driver rammed into the back of your vehicle. The impact forced your car forward and into moving traffic, which caused a second, more serious collision. As a result, you have had to undergo physical rehabilitation, surgery, and other medical treatment. You have also had to resign from your position at work, as you are no longer able to handle the responsibilities of the position.
Scenario #1: you allege purely physical, medical, and financial damages. Though you allege standard “pain and suffering” damages, you do not assert any mental or emotional pain and suffering.
Scenario #2: you allege physical, medical, and financial damages, as well as pain and suffering and emotional distress. Right before the accident occurred, you looked in the rearview mirror and saw the drunk driver speeding towards you. You were aware of the inevitability of the accident, but you could not move your car to avoid it. This sharp feeling of fear, you assert, developed into PTSD.
In Scenario #1, as the claim does not involve your mental or emotional condition after the accident, the defendant is not likely to penetrate your psychotherapist-patient confidentiality shield. Florida case law (see Olges v. Dougherty) is clear that mental health records and examinations cannot be compelled if there are no specific allegations of mental and emotional damages. A pain and suffering allegation that focuses solely on physical pain and suffering will not sacrifice the psychotherapist-patient privilege.
In Scenario #2, on the other hand, the defendant may be able to compel disclosure of your mental health records (and possibly subject you to a mental health examination). Specific allegations concerning your mental and emotional condition, such as PTSD, make your psychiatric records relevant. The defendant may compel disclosure so that they can examine your psychiatric history and determine whether the actual severity of your mental and emotional distress claims and whether they are based on a pre-existing condition.
Bringing a personal injury lawsuit in Florida does not necessarily force you to disclose sensitive mental health information. If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, seek legal guidance from a skilled Fort Lauderdale accident attorney at David I. Fuchs, Injury & Accident Lawyer, P.A..