holding that a plaintiff who seeks mental anguish damages arising out of a motor vehicle accident has made his emotional condition an element of his negligence claim and therefore cannot invoke the psychotherapist-patient privilegeSummary of this case from Johnson v. Trujillo
November 23, 1994.
Petition from the Circuit Court, Dade County, Rosemary Usher Jones, J.
Matt Hellman, and Marvin P. Pastel, Plantation, for petitioners.
Malove, Kaufman Marbin, and Michael Kaufman, Miami, for respondent.
Before LEVY, GERSTEN and GREEN, JJ.
Harold and Sara Scheff petition this court for a writ of certiorari seeking to reverse an order granting a motion for protective order pertaining to respondent Bertha Mayo's psychological records. We grant the writ and direct the trial court to allow the petitioners to obtain discovery as to the respondent's psychiatric treatment.
Respondent Bertha Mayo was involved in a rear-end motor vehicle accident with a car driven by petitioner Sara Scheff, and owned by her father, Harold Scheff. The respondent filed suit against the petitioners seeking, inter alia, damages for mental anguish.
A plaintiff who seeks mental anguish damages arising out of a motor vehicle accident has "made his post-accident mental or emotional condition an element of his negligence claim" and cannot invoke the psychotherapist-patient privilege. Arzola v. Reigosa, 534 So.2d 883 (Fla. 3d DCA 1988). The respondent is not entitled to invoke the psychotherapist-patient privilege because she has placed her mental condition at issue. See Arzola v. Reigosa, 534 So.2d at 883; Yoho v. Lindsley, 248 So.2d 187 (Fla. 4th DCA 1971). Therefore we grant the petition for writ of certiorari, quash the order below, and direct the trial court to permit the pretrial discovery of the respondent's psychiatric records.
Certiorari granted; order quashed.