Oswald v. Diamond

• Decision Date: 26 March 1991
• Docket Number: No. 90-3456,90-3456
• Citation: Oswald v. Diamond, 576 So.2d 909, 16 Fla. L. Weekly 844 (Fla. App. 1991)
• Parties: 16 Fla. L. Weekly 844 Crystal OSWALD, Appellant, v. Mark DIAMOND, Appellee.
• Court: Florida District Court of Appeals

Page 909

576 So.2d 909

16 Fla. L. Weekly 844

Crystal OSWALD, Appellant, v.Mark DIAMOND, Appellee.

No. 90-3456.

District Court of Appeal of Florida First District.

March 26, 1991.

Mark H. Mahon, of Lacy Mahon, Jr. and Mark H. Mahon, P.A., Jacksonville, for appellant.

Barry Zisser, Jacksonville, for appellee.

WENTWORTH, Senior Judge.

Crystal Oswald filed a Petition for Writ of Certiorari seeking review of a nonfinal discovery order.She asserts that the trial court erred in granting respondent's motion to compel her to release her medical records in a child custody case where she invoked the psychotherapist-patient privilege available under section 90.503, Florida Statutes.

We affirm in part and reverse in part the trial court's nonfinal discovery order.Orders permitting discovery may be reviewed by writ of certiorari when a trial court departs from the essential requirements of law and review on appeal would be inadequate.City of Williston v. Roadlander, 425 So.2d 1175(Fla. 1st DCA1983).We conclude that the court in the present case departed from the essential requirements of law by permitting discovery of petitioner's medical records despite her claim of the psychotherapist-patient privilege.SeeMcIntyre v. McIntyre, 404 So.2d 208(Fla. 2d DCA1981), andMohammad v. Mohammad, 358 So.2d 610(Fla. 1st DCA1978)(holding that a spouse does not make his or her mental condition an "element of his or her defense," thereby waiving the psychotherapist-patient privilege, simply by seeking custody).In Peisach v. Antuna, 539 So.2d 544(Fla. 3rd DCA1989), the court further held that mere allegations of mental or emotional instability are insufficient to place the custodial parent's mental health at issue so as to overcome the privilege.

Petitioner's affidavit filed below states that Dr. Browning was engaged in the treatment of her mental or emotional condition and was therefore a psychotherapist as defined in section 90.503(1)(a), Florida Statutes.We find accordingly that petitioner is entitled to the statutory privilege to the extent of such treatment or diagnosis.However, as respondent correctly alleges, Florida does not recognize a general doctor-patient privilege.Fidelity and Casualty Co. of New York v. Lopez, 375 So.2d 59(Fla. 4th DCA1979).Section 90.503(2), Florida Statutes, provides:

A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the...