05-2862 SEGARRA V. SEGARRA

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 05-2862 SEGARRA V. SEGARRA

Case Date: 06/28/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006 MANUEL A. SEGARRA, III, Petitioner, vs. ESPERANZA SEGARRA, Respondent. ** ** ** ** ** ** LOWER TRIBUNAL NO. 01-29713 CASE NO. 3D05-2862

Opinion filed June 28, 2006. A Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Thomas S. Wilson, Judge. Manuel A. Segarra, III, in proper person. Esperanza Segarra, in proper person. Before GERSTEN, SUAREZ, and ROTHENBERG, JJ. GERSTEN, Judge. Manuel A. Segarra, III (Athe father@), filed a petition for writ of certiorari seeking to quash the trial court=s discovery order. We grant the writ of certiorari and quash the trial court=s

discovery order allowing production of privileged communications. 1

The father asserts that the trial court departed from the essential requirements of the law, by ordering production of privileged joint counseling records. Esperanza Segarra, (Athe

mother@), contends that the trial court=s decision was proper because the psychotherapist-patient privilege does not apply to communications in joint counseling sessions. Based on the facts of

this case, we agree with the father that the communications and records from the joint sessions are privileged. A petition for writ of certiorari is the appropriate method to review a discovery order when the order departs from the essential requirements of the law, causes material injury throughout the remainder of the proceedings below, and effectively leaves no adequate remedy on appeal. See Nussbaumer v. State, 882 So. 2d The entry of an order compelling

1067, 1071 (Fla. 2d DCA 2004).

the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law. Nussbaumer, 882 So. 2d at 1072. Florida law recognizes several privileges including: attorneyclient privilege, psychotherapist-patient privilege, husband-wife privilege, privilege. Stat. priest-penitent privilege, and accountant-client See

See '' 90.502, 90.503, 90.504, 90.505, 90.5055, Fla. The patient, of client, these or penitent is holds to the

(2004). The

privilege.

purpose

privileges

protect

confidential communications between the parties and to encourage people seeking treatment or advice to speak freely on all matters. 2

However, the parties may waive the privileges. McKinlay, 648 So. 2d 806 (Fla. 1st DCA 1995).

See McKinlay v.

There is no Florida case law that directly addresses whether the psychotherapist-patient privilege is waived in joint counseling sessions. The mother suggests we follow case law from other See Redding v. Virginia Mason Med. Ctr., 878 P.2d

jurisdictions.

483 (Wash. Ct. App. Div. 1 1994); Hahman v. Hahman, 628 P.2d 984 (Ariz. Ct. App. Div. 2 1981). However, we are not persuaded and

decline to follow Redding or Hahman. In Redding and Hahman, the courts analogized the attorneyclient privilege to the psychotherapist-patient privilege. courts held that in litigation between joint patients, The the

psychotherapist-patient privilege does not protect statements made by one of the joint patients to the counselor during the joint counseling sessions. P.2d at 986. In Washington and Arizona, the psychotherapist-patient See Redding, 878 P.2d at 485; Hahman, 628

privilege explicitly requires confidential communications between a client and psychologist remain privileged against compulsory

disclosure to the same extent and subject to the same conditions as confidential communications between an attorney and a client. Redding, 878 P.2d at 485; Hahman, 628 P.2d at 985. See

Therefore, the

courts properly extended the concept of waiver in joint attorneyclient sessions to waiver in joint psychotherapist-patient

sessions. 3

However, in Florida, the psychotherapist-patient privilege does not include language that the privilege should be subject to the same conditions as the attorney-client privilege or any other statutory privilege. Section 90.503, Florida Statutes (2004),

provides that a patient has a privilege to refuse to disclose, and to prevent any other person from disclosing confidential

communications or records made for the purpose of diagnosis or treatment of the patient=s mental or emotional condition. 90.503(2), Fla. Stat. (2004). See '

Thus, we are not required to

analogize the psychotherapist-patient privilege to the confidential communications between an attorney and a client. We must be cognizant privilege they of and the reason the for the patientprivacy The

psychotherapist expectations

respect

parties=

when

reveal

confidential

information.

psychotherapist-patient privilege enables a person suffering from mental, emotional, or behavioral disorders to seek services and treatment without being needlessly exposed to public scrutiny. See

Cedars Healthcare Group, Ltd. v. Freeman, 829 So. 2d 390 (Fla. 3d DCA 2002). Here, the father and mother attended joint counseling sessions to improve their relationship and ultimately, to save their

marriage.

Typically, the goals of marriage counseling are to

strengthen communication, to develop problem-solving skills, and to learn how to resolve conflicts. The parties are encouraged to

reveal matters of the utmost private nature, by opening their souls 4

to the therapist, in order to assure that they will receive a proper diagnosis and treatment. See Cantor v. Toyota Motor Sales, Therefore, it is

USA, Inc., 546 So. 2d 766 (Fla. 5th DCA 1989).

clear that the father and mother had an expectation that any communications they made to the counselor would remain

confidential, regardless of whether the therapy was an individual or joint session. However, the privilege is not absolute because a party can waive the privilege at any time. A person having of the a

psychotherapist-patient

privilege

against

disclosure

confidential matter or communication waives the privilege if the person . . . voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of any significant part of the matter or communication. See ' 90.507, Fla. Stat. (2004).

Here, the father did not voluntarily disclose confidential information to another party. He had a reasonable expectation of

privacy in the joint session, and he did not consent to disclosure of any part of the communication. However, had the court ordered

the counseling sessions, then there would have been no reasonable expectation of confidentiality. (2004). See ' 90.503(4)(b), Fla. Stat. Therefore, we

Here, the court did not order the sessions.

find that the father did not waive his psychotherapist-patient privilege when he attended joint counseling sessions with the mother. 5

Accordingly, we grant the petition for writ of certiorari and quash the trial court=s discovery order, which compels discovery of privileged communications. Petition granted and order quashed.

6

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