Yoho v. Lindsley

• Decision Date: 23 April 1971
• Docket Number: No. 71--100,71--100
• Citation: 248 So.2d 187
• Parties: Jess YOHO, Petitioner, v. Joan B. LINDSLEY, a single woman, Respondent.
• Court: Florida District Court of Appeals

Page 187

248 So.2d 187

Jess YOHO, Petitioner, v. Joan B. LINDSLEY, a single woman, Respondent.

No. 71--100.

District Court of Appeal of Florida, Fourth District.

April 23, 1971.

Rehearing Denied June 8, 1971.

Patrick N. Chidnese of Howell Kirby Montgomerty D'Aiuto Dena & Hallowes, Fort Lauderdale, for petitioner.

Harold B. Probes, Jr., of Hallman, Meeker & Sanson, Boca Raton, for respondent.

MAGER, Judge.

Petitioner-defendant, Jess Yoho, seeks to review by certiorari an interlocutory order not otherwise reviewable by interlocutory appeal pursuant to F.A.R. 4.2, 32 F.S.A.

Respondent-plaintiff, Joan B. Lindsley, filed an action at law for damages against defendant alleging that as a result of defendant's negligence plaintiff suffered injuries in an automobile accident on or about June 8, 1968. Plaintiff's complaint specifically alleged physical and mental suffering claiming, among other things, that as a result of the accident 'she has suffered and will continue to suffer both physically and mentally and she has suffered and will continue to suffer headaches * * *' and that 'some of her personal injuries are permanent'. Petitioner-defendant filed an answer denying negligence and asserting the affirmative defense of contributory negligence. Discovery proceedings were commenced by the parties; petitioner sought to take the deposition of one Dr. Raymond R. Killinger, Jr., the respondent's treating psychiatrist from June 17, 1967 to April 5, 1969. Petitioner asserts that Dr. Killinger, at the instruction of respondent's attorney, refused to allow counsel for petitioner to inspect or to have read into the deposition his records concerning his treatment of the respondent nor was Dr. Killinger permitted to answer any questions concerning respondent's mental condition on the date of the accident.

Petitioner filed a motion to compel discovery and respondent filed a motion for protective order limiting the scope of examination. The trial court entered an order pursuant to F.S. section 90.242, F.S.A., concluding in part as follows:

'* * * Dr. Killinger shall answer all questions which are Relevant to the subject matter of this action; if the Plaintiff objects on the grounds that the material sought after, which may be either in the doctor's records or personal knowledge, is irrelevant and privileged, Dr. Killinger shall state (1) the general nature of the subject matter involved (either in his records or personal knowledge) and (2) why, in his opinion, the subject matter sought after is not relevant, In order to assist the Court in later rulings on certified questions. Further, the Defendant shall be entitled to a personal examination of only those parts of Dr. Killinger's records concerning his treatment of the Plaintiff which are relevant to the subject matter of this action; Dr. Killinger shall not be required to read nor may the Defendant examine those parts of his records objected to by the Plaintiff and, in such event, Dr. Killinger shall state the general nature of such records and why it is not relevant, as set forth above.' (Emphasis supplied.)

Petitioner suggests that the wording of the aforementioned order permits plaintiff's attorney and treating psychiatrist to determine a legal question, i.e. relevancy, without the court or counsel for defendant ever having had the opportunity to examine the actual records concerning the plaintiff's treatment.

Petitioner seeks review of this order asserting that petitioner will suffer irreparable harm by not being given the benefit of examining the actual records and being heard as to their relevancy and also by not being given the benefit of the court's ruling on the legal question of the relevancy of the actual records as opposed to only Dr. Killinger's statement of the general nature of the subject matter involved.

The decision of the Florida Supreme Court in Brooks v. Owens, Fla.1957, 97 So.2d 693, discusses the circumstances under which interlocutory proceedings at law are reviewable by certiorari, as follows:

'This court will review an interlocutory order in law only under exceptional circumstances. Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. * * *'

We have carefully reviewed the order of the trial court in light of the Brooks decision and are of the opinion that the petitioner has failed to demonstrate that the order complained of does not conform to the essential requirements of law.

The order of the trial court was entered pursuant to F.S. section 90.242, F.S.A., which section creates a psychiatrist-patient privilege, and provides, in part, as follows:

'90.242 Psychiatrists as witnesses; non-disclosure of communications with patient

'(1) * * *

'(2) Except as hereinafter provided, in civil and criminal cases, in proceedings preliminary hereto, and in legislative and administrative proceedings, a patient or his authorized representative, has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications between patient and psychiatrist, or between members of the patient's family and the psychiatrist, or records, relating to diagnosis or treatment of the patient's mental condition.

'(3) There shall be no privilege for Any relevant communications under this section:

(a) * * *

(b) In a criminal or civil proceeding In which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when said condition is introduced by any party claiming or defending through or as a beneficiary of the patient. Laws 1965, c. 65--404, § 1, eff. June 25, 1965.'

The trial judge's order reflects a great concern for the rights of the respective parties and carefully endeavors to maintain the proper balance between facilitating the ascertainment of truth in connection with legal proceedings and avoiding unwarranted intrusions into the confidences of the psychiatrist-patient relationship. We do not read the trial court's order (as petitioner suggests) as delegating to the psychiatrist or respondent's attorney the judicial determination of what constitutes 'relevant communications'. On the contrary, this suggestion is clearly negated by the language of the order indicating 'later rulings on certified questions' in the event that respondent objects to certain inquiries or inspections of matters not relevant to the proceedings. To assist the court in making these 'later rulings' the court has required the psychiatrist to state 'why, in his opinion, the subject matter sought after is not relevant'. We do not deem this requirement to be unreasonable nor do we construe this language as delegating the determination of relevancy to the psychiatrist as this determination is solely a judicial question.

Moreover, since the entry of the order under appeal, no questions have been propounded and we can neither speculate as to what questions would be relevant nor assume that the trial court does not intend to pass upon the question of relevancy. The procedural and substantive determination of relevancy would be guided by the customary rules of practice applicable to discovery except as hereinafter noted.

The construction and interpretation of the psychiatrist-patient privilege under Section 90.242 is a matter of first impression in this state and for that reason we would make the following observations for the benefit of the parties and the trial court. One of the most exhaustive treatments dealing with the scope and extent of this privilege appears in the recent decision of the Supreme Court of California in In re Lifschutz, 1970, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557. The problem has also been discussed in a very recent annotation appearing in 21 A.L.R.3d 912--925. See also City of Portsmouth v. Cilumbrello, 1963, 204 Va. 11, 129 S.E.2d 31. The Supreme Court of California reflects upon the very delicate and sensitive relationship between the psychiatrist and his patient:

"The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients...