Wrongful death action against hospital

Florida Case Law

HANNON v. SHANDS TEACHING HOSPITAL, 1D06-391 (Fla.App. 1 Dist. 11-16-2006) YVETTE HANNON, as personal representative of the Estate of Nathan Scott Hannon, and on behalf of all survivors, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., d/b/a Shands at Live Oak, Shands Medical Group of Live Oak, and Shands Healthcare; ROBERT SPINDELL, D.O., and B.S. HEGDE, M.D., Respondents. Case No. 1D06-391. District Court of Appeal of Florida, First District. Opinion filed November 16, 2006.

Petition for Writ of Certiorari — original jurisdiction.

John S. Mills of Mills & Carlin, P.A., Jacksonville; James
W. Gustafson, Jr., of Searcy Denney Scarola Barnhart &
Shipley, P.A., Tallahassee; and W. Roderick Bowdoin, Lake
City, Attorneys for Petitioner.

Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee;
John D. Jopling, Gainesville, for Respondent Shands
Teaching Hospital and Clinics, Inc.

Jennings L. Hurt, III, Henry W. Jewett, II, and Christian
P. Trowbridge of Rissman, Weisberg, Barrett, Hurt, Donahue
& McLain, P.A., Orlando, for Respondent Robert Spindell,
M.D.

John S. Derr, Tallahassee, for Respondent B.S. Hegde, M.D.

THOMAS, J.

In this petition for writ of certiorari, Petitioner asks
this court to quash the trial court’s order compelling
production of a non-party’s psychotherapy records. We grant
the petition.

Petitioner initiated a wrongful death action against
Respondents, alleging that Respondents’ negligence led to
her minor son’s death. Petitioner, personal representative
of Decedent, filed this suit on behalf of all survivors, as
defined under Florida’s Wrongful Death Act; however,
Decedent’s brother, “Rickey,” is not considered a survivor
and is therefore barred from bringing a personal claim in
this action, even though he was present when Decedent died.

During deposition, Petitioner’s grief expert, Dr. Hughes,
testified that Rickey has anger management issues that have
resulted from his brother’s death. Dr. Hughes testified
that these anger problems have compounded Petitioner’s
grief and have impacted the survivors’ emotional pain and
suffering.

Following Dr. Hughes’ deposition, Respondent Dr. Spindell
requested that the trial court compel Rickey to disclose
his psychological records, as they were made an issue in
the case through Dr. Hughes’ testimony. Rickey refused, and
signed an affidavit stating that he did not give any person
authorization to disclose his records. The trial court
granted Respondents’ motion and compelled Rickey to provide
his psychological records to Respondent. Production was
stayed, pending review of the order by certiorari.

There is no question that Petitioner has the authority to
claim the psychotherapist/patient privilege on Rickey’s
behalf. § 90.503(3)(b), Fla. Stat. (2005). The
privilege has statutory limitations and may be waived.
Pursuant to section 90.503(4)(c), Florida Statutes (2005),
there is no privilege

[f]or 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.

(Emphasis added.) A plain reading of the statute clearly
states that the exception applies when (1) the patient
relies on his or her mental or emotional condition, and (2)
the patient makes the condition an issue in the lawsuit.
Neither of these facts is present here.

In Bandorf v. Volusia County Department of Corrections,
this court held that the exception does not apply merely
because the psychiatric records might contain information
that would be relevant for impeachment purposes or in
connection with a defense that the injuries complained of
are the result of some preexisting mental or emotional
condition. 31 Fla. L. Weekly D2550 (Fla. 1st DCA October
16, 2006). We held that “the section 90.503(4)(c) exception
applies only when the patient — rather than some
party who opposes the patient in litigation — places
his mental or emotional condition in issue.” Id. at D2551
(emphasis in original). In Bandorf, the defendant was
requesting the psychological records of a party to the
lawsuit; Rickey, the patient here, is not a party to the
lawsuit, therefore, it is impossible for him to make his
mental or emotional condition an issue in this lawsuit.
Certainly there is a distinction between claims and
defenses made by Petitioner and claims and defenses made by
Rickey. Rickey is not a party in this action and is
pursuing no claims or defenses.

Respondent’s reliance on Amente v. Newman, 653 So. 2d 1030
(Fla. 1995), is unfounded, as it is distinguishable on two
grounds from the situation before us. It can first be
distinguished factually. In Amente, the doctor, a defendant
in the case, was ordered to produce medical records of
non-party patients. The court made it clear that all proper
precautions were to be taken to protect the patients’
identity. Id. at 1032. Therefore, no privacy rights of any
patient would be violated by the order. Here, not only is
it the patient who is being asked to produce his own
records, but neither the patient nor the patient’s doctor
is a party in the lawsuit. It will be impossible for
Rickey’s privacy to be protected.

Second, and more importantly, there was no statutory
privilege raised in Amente. The issue before the court was
merely whether the patient records were relevant and
whether this relevancy outweighed the patients’ right to
confidentiality of their medical files. Id. at 1031. Rule
1.280(b)(1), Florida Rules of Civil Procedure, which
defines the proper scope of discovery, states, “Parties may
obtain discovery regarding any matter, not privileged, that
is relevant to the subject matter of the pending action. .
. .” (emphasis added). No matter how relevant Rickey’s
records may be to the pending action here, because they are
privileged, they are not discoverable.

We, therefore, GRANT the petition for writ of certiorari
and QUASH the trial court’s order authorizing release of
the records.

ERVIN and WEBSTER, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF FILED.