December 6, 1988.
Neil Carver, Coral Gables, for petitioner.
Blackwell, Walker, Fascell Hoehl and Kathleen M. Salyer, Miami, for respondents.
Before HUBBART, NESBITT and FERGUSON, JJ.
The petition for a writ of certiorari seeking review of a trial court order which directs the pretrial discovery of medical records concerning the plaintiff's post-accident psychiatric treatment is denied. The plaintiff brought the instant negligence action arising out of an automobile/bicycle collision below and, inter alia, sought mental anguish damages. This being so, he cannot claim, as urged, a psychotherapist-patient privilege with respect to these records; there is no such privilege "[f]or communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim. . . ." § 90.503(4)(c), Fla. Stat. (1987). Contrary to plaintiff's argument, we conclude that plaintiff has made his post-accident mental or emotional condition an element of his negligence claim below by requesting post-accident mental anguish damages; we reach this result based on the indistinguishable authority of Yoho v. Lindsley, 248 So.2d 187 (Fla. 4th DCA 1971), and Haney v. Mizell Memorial Hospital, 744 F.2d 1467 (11th Cir. 1984) (applying Florida law).