Obtaining Mental Health Records in an Injury Claim

When is a Defendant in a Personal Injury Lawsuit Entitled to Obtain the Plaintiff’s Medical Records Regarding Psychiatric, Psychological, and Psychotherapeutic Treatment and Counseling?

One common issue that arises in personal injury litigation in Florida is the issue of whether a defendant is entitled to obtain the plaintiff’s medical records regarding his or her psychiatric, psychological, and psychotherapeutic treatment or counseling. In Florida, there is a statute that makes a plaintiff’s psychiatric, psychological, and psychotherapeutic treatment privileged, and thus this information cannot be obtained by any other person without the plaintiff’s consent.

Florida Statute section 90.503 covers the psychotherapeutic-patient privilege. A patient’s communications with a psychotherapist is privileged, unless one of three statutory exceptions is present as contained in Florida Statute section 90.503(4). The first exception occurs when a psychotherapist has reasonable cause to believe that hospitalization of the patient is required; this is when a patient is involuntarily committed to a hospital under the Baker Act. The second statutory exception occurs when the court orders an examination of the mental or emotional condition of the patient in either a criminal or a civil action. In this scenario, the privilege does not apply to communications made during the course of the subsequent examination. This typically occurs in criminal cases where a defendant raises the defense of insanity.

The third statutory exception to the privilege is the exception that most commonly applies to personal injury lawsuits. Under this exception, if a patient places in issue his or her mental or emotional condition as an element to his or her claim or defense, the privilege will not apply. This exception does not apply to treatment for a condition unrelated to the claim or defense. The next question in this regard, is when does a patient place his or her mental or emotional condition in issue as an element of his or her claim?

Under the applicable Florida case law, a plaintiff places his or her mental or emotional condition in issue if he or she makes a claim for “mental anguish” or emotional distress as part of his or her damages in the Complaint. When this occurs, the psychotherapist-patient privilege is waived, and the defendant can obtain medical records regarding the plaintiff’s psychotherapeutic treatment and communication with the psychotherapist.

One way defense attorneys in personal injury lawsuits attempt to get around the requirement that the plaintiff make a claim for “mental anguish” in order to place his or her mental condition in issue is by claiming that if the plaintiff does not make a claim for “mental anguish” in the complaint, but makes a claim for “loss of enjoyment of life” as part of the damages, then defense attorneys will argue that this waives the psychotherapist-patient privilege. This is simply not true under the relevant case law. Under the case law, even though a plaintiff seeks recovery for “great pain and suffering” and “loss of enjoyment of life” in the complaint but does not include a claim for “mental anguish,” any 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 privilege for mental health records.

In fact, even if a plaintiff initially makes a claim for “mental anguish” in his or her complaint and places his or her mental/emotional condition in issue, if the plaintiff subsequently withdraws the claim for “mental anguish,” then the privilege is no longer waived and the plaintiff again enjoys the benefit of the psychotherapist-patient privilege, thereby protecting his or her mental health records from disclosure to the defendant.

Timothy B. Sanders, Burnetti, P.A.