39 Fla. L. Weekly D79a
Civil rights — Constructive discharge from employment in
violation of Florida Civil Rights Act based upon perceived disability —
Discovery — Trial court did not depart from essential requirements of law in
authorizing defendant to obtain discovery of plaintiff’s medical and psychiatric
records, which were claimed to be protected by psychotherapist-patient
privilege, where plaintiff placed her medical and psychiatric condition at issue
through her disability discrimination claim and her request for emotional
distress damages — Trial court departed from essential requirements of law by
allowing discovery of records without limiting the scope of production or
conducting an in camera review
violation of Florida Civil Rights Act based upon perceived disability —
Discovery — Trial court did not depart from essential requirements of law in
authorizing defendant to obtain discovery of plaintiff’s medical and psychiatric
records, which were claimed to be protected by psychotherapist-patient
privilege, where plaintiff placed her medical and psychiatric condition at issue
through her disability discrimination claim and her request for emotional
distress damages — Trial court departed from essential requirements of law by
allowing discovery of records without limiting the scope of production or
conducting an in camera review
JOAN SCULLY, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC.,
Respondent. 1st District. Case No. 1D13-4501. Opinion filed January 3, 2014.
Petition for Writ of Certiorari. Counsel: Neil Chonin and Alice K. Nelson of
Southern Legal Counsel, Inc., Gainesville, for Petitioner. Kevin D. Johnson,
Marquis W. Heilig and Whitney M. Buescher of Thompson, Sizemore, Gonzalez &
Hearing, P.A., Tampa, for Respondent.
Respondent. 1st District. Case No. 1D13-4501. Opinion filed January 3, 2014.
Petition for Writ of Certiorari. Counsel: Neil Chonin and Alice K. Nelson of
Southern Legal Counsel, Inc., Gainesville, for Petitioner. Kevin D. Johnson,
Marquis W. Heilig and Whitney M. Buescher of Thompson, Sizemore, Gonzalez &
Hearing, P.A., Tampa, for Respondent.
(WETHERELL, J.) Petitioner, Joan Scully, seeks certiorari review of an order
denying her motion for a protective order and authorizing Respondent, Shands
Teaching Hospital and Clinics, Inc. (Shands), to obtain discovery of her medical
and psychiatric records. We grant the petition in part.
denying her motion for a protective order and authorizing Respondent, Shands
Teaching Hospital and Clinics, Inc. (Shands), to obtain discovery of her medical
and psychiatric records. We grant the petition in part.
In October 2011, Scully was voluntarily admitted to a psychiatric hospital as
a result of an adverse reaction to a medication for her psychiatric condition.
At the time, Scully was employed by Shands as a licensed clinical social worker.
After her discharge from the psychiatric hospital, Shands would not allow Scully
to return to work until she was evaluated by the Professional Resource Network
(PRN).1 In November 2011, PRN advised
Shands that Scully was “able to practice with reasonable skill and safety,” but
also noted that she was “in the process of establishing a contract[2] with [PRN].” Shands refused to allow Scully to
return to work without providing a copy of the contract. Scully refused to do
so, and in December 2011, she resigned from Shands.
a result of an adverse reaction to a medication for her psychiatric condition.
At the time, Scully was employed by Shands as a licensed clinical social worker.
After her discharge from the psychiatric hospital, Shands would not allow Scully
to return to work until she was evaluated by the Professional Resource Network
(PRN).1 In November 2011, PRN advised
Shands that Scully was “able to practice with reasonable skill and safety,” but
also noted that she was “in the process of establishing a contract[2] with [PRN].” Shands refused to allow Scully to
return to work without providing a copy of the contract. Scully refused to do
so, and in December 2011, she resigned from Shands.
In August 2012, Scully filed a complaint against Shands alleging that she was
constructively discharged in violation of the Florida Civil Rights Act based
upon a perceived disability. During the course of discovery, Shands sought
production of records from PRN and various providers who treated or evaluated
Scully. Scully objected to the production and sought a protective order. The
trial court denied the protective order and allowed the discovery. Scully timely
sought review of the order in this court by filing a petition for certiorari,
which “seeks reversal [of the trial court’s order] to the extent that the Order
permits [Shands’] non-party subpoenas to [PRN], Leslie Sahler LCSW,[3] and [PRN evaluator] Leslie Parsons, D.O.”4
constructively discharged in violation of the Florida Civil Rights Act based
upon a perceived disability. During the course of discovery, Shands sought
production of records from PRN and various providers who treated or evaluated
Scully. Scully objected to the production and sought a protective order. The
trial court denied the protective order and allowed the discovery. Scully timely
sought review of the order in this court by filing a petition for certiorari,
which “seeks reversal [of the trial court’s order] to the extent that the Order
permits [Shands’] non-party subpoenas to [PRN], Leslie Sahler LCSW,[3] and [PRN evaluator] Leslie Parsons, D.O.”4
Where, as here, an order permits discovery of medical or other records that
are protected by constitutional or statutory privileges, this court has
jurisdiction to review the order because the harm caused by the erroneous
production of such records cannot be remedied on appeal. See Allstate
Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995); James v.
Veneziano, 98 So. 3d 697, 698 (Fla. 4th DCA 2012). However, relief is
warranted only if the order departs from the essential requirements of the law.
See Mullins v. Tompkins, 15 So. 3d 798, 800 (Fla. 1st DCA 2009).
are protected by constitutional or statutory privileges, this court has
jurisdiction to review the order because the harm caused by the erroneous
production of such records cannot be remedied on appeal. See Allstate
Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995); James v.
Veneziano, 98 So. 3d 697, 698 (Fla. 4th DCA 2012). However, relief is
warranted only if the order departs from the essential requirements of the law.
See Mullins v. Tompkins, 15 So. 3d 798, 800 (Fla. 1st DCA 2009).
Scully first contends that the trial court departed from the essential
requirements of law because the records sought by Shands are not relevant and
are protected from discovery by the psychotherapist-patient privilege. We
disagree. Scully placed her medical and psychiatric condition at issue in this
case through her disability discrimination claim and her request for emotional
distress damages. Accordingly, the trial court properly determined that the
records were discoverable. See § 90.503(4)(c), Fla. Stat. (2012)
(excepting from the psychotherapist-patient privilege “communications relevant
to an issue of the mental or emotional condition of the patient in any
proceeding in which the patient relies upon the condition as an element of his
or her claim”); cf. Poston v. Wiggins, 112 So. 3d 783, 786 (Fla.
1st DCA 2013) (quashing portion of order allowing discovery of defendant’s
post-accident medical records because the defendant was not seeking affirmative
relief and her post-accident medical condition was irrelevant to the issues in
the case).
requirements of law because the records sought by Shands are not relevant and
are protected from discovery by the psychotherapist-patient privilege. We
disagree. Scully placed her medical and psychiatric condition at issue in this
case through her disability discrimination claim and her request for emotional
distress damages. Accordingly, the trial court properly determined that the
records were discoverable. See § 90.503(4)(c), Fla. Stat. (2012)
(excepting from the psychotherapist-patient privilege “communications relevant
to an issue of the mental or emotional condition of the patient in any
proceeding in which the patient relies upon the condition as an element of his
or her claim”); cf. Poston v. Wiggins, 112 So. 3d 783, 786 (Fla.
1st DCA 2013) (quashing portion of order allowing discovery of defendant’s
post-accident medical records because the defendant was not seeking affirmative
relief and her post-accident medical condition was irrelevant to the issues in
the case).
Scully alternatively contends that the trial court departed from the
essential requirements of law by allowing discovery of the records without
limiting the scope of the production or conducting an in camera review. On this
point, we agree. Although the requests for production directed to PRN and Dr.
Parsons focused on records involved in the November 2011 determination that
Scully was fit to practice, the request directed to Ms. Sahler sought “[a] full
and complete copy of any and all medical records and information regarding
[Scully]” without any temporal limitation. The trial court did not limit the
scope of the records that Ms. Sahler was required to produce to a period more
temporally-related to the claims at issue in this case, nor did it require an in
camera review to ensure that only relevant records are produced. By failing to
do so, the trial court departed from the essential requirements of law.
See, e.g., James, 98 So. 3d at 698 (holding that trial
court must conduct in camera review to limit disclosure of medical records to
those relevant to litigation); Smith v. Smith, 64 So. 3d 169 (Fla. 4th
DCA 2011) (requiring trial court to review wife’s mental health records in
camera prior to releasing them to husband if wife waived psychotherapist-patient
privilege); Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005) (quashing
broad order for production of entire medical record and remanding for in camera
inspection to prevent disclosure of information not relevant to litigation);
Bergmann v. Freda, 829 So. 2d 966 (Fla. 4th DCA 2002) (directing trial
court to conduct in camera review of medical records to determine if good cause
exists for disclosure where plaintiff requested any and all medical records).
essential requirements of law by allowing discovery of the records without
limiting the scope of the production or conducting an in camera review. On this
point, we agree. Although the requests for production directed to PRN and Dr.
Parsons focused on records involved in the November 2011 determination that
Scully was fit to practice, the request directed to Ms. Sahler sought “[a] full
and complete copy of any and all medical records and information regarding
[Scully]” without any temporal limitation. The trial court did not limit the
scope of the records that Ms. Sahler was required to produce to a period more
temporally-related to the claims at issue in this case, nor did it require an in
camera review to ensure that only relevant records are produced. By failing to
do so, the trial court departed from the essential requirements of law.
See, e.g., James, 98 So. 3d at 698 (holding that trial
court must conduct in camera review to limit disclosure of medical records to
those relevant to litigation); Smith v. Smith, 64 So. 3d 169 (Fla. 4th
DCA 2011) (requiring trial court to review wife’s mental health records in
camera prior to releasing them to husband if wife waived psychotherapist-patient
privilege); Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005) (quashing
broad order for production of entire medical record and remanding for in camera
inspection to prevent disclosure of information not relevant to litigation);
Bergmann v. Freda, 829 So. 2d 966 (Fla. 4th DCA 2002) (directing trial
court to conduct in camera review of medical records to determine if good cause
exists for disclosure where plaintiff requested any and all medical records).
Accordingly, we grant the petition in part and quash the trial court’s order
insofar as it orders production of records from PRN, Ms. Sahler, and Dr. Parsons
without limiting the scope of the records that must be produced or requiring an
in camera review of the records before they are turned over to Shands. The case
is remanded for the trial court to conduct an in camera review of the records
produced by these providers to prevent disclosure of information that is not
relevant to this litigation. In all other respects, the petition is denied.
insofar as it orders production of records from PRN, Ms. Sahler, and Dr. Parsons
without limiting the scope of the records that must be produced or requiring an
in camera review of the records before they are turned over to Shands. The case
is remanded for the trial court to conduct an in camera review of the records
produced by these providers to prevent disclosure of information that is not
relevant to this litigation. In all other respects, the petition is denied.
GRANTED in part; DENIED in part; ORDER QUASHED in part and REMANDED for
further proceedings. (CLARK and RAY, JJ., CONCUR.)
further proceedings. (CLARK and RAY, JJ., CONCUR.)
__________________
1PRN serves as consultant to the Department
of Health and provides for early identification, intervention and appropriate
treatment services for licensed professionals who are unable to perform their
professional duties and responsibilities with skill and safety after becoming
impaired as a result of physical conditions, mental or emotional problems or
chemical dependency/abuse. See § 456.076, Fla. Stat. (2012).
of Health and provides for early identification, intervention and appropriate
treatment services for licensed professionals who are unable to perform their
professional duties and responsibilities with skill and safety after becoming
impaired as a result of physical conditions, mental or emotional problems or
chemical dependency/abuse. See § 456.076, Fla. Stat. (2012).
2The parties refer to the contract as a
“monitoring contract.” The record is not entirely clear on the purpose of such a
contract, although it appears that its purpose is to identify any conditions,
limitations, or restrictions on the licensee’s practice.
“monitoring contract.” The record is not entirely clear on the purpose of such a
contract, although it appears that its purpose is to identify any conditions,
limitations, or restrictions on the licensee’s practice.
3Ms. Sahler is a psychotherapist who has
treated Scully since 1990.
treated Scully since 1990.
4The petition does not seek “reversal” of
the order as to the other providers subject to Shands’ non-party subpoenas:
Cynthia J. White, M.D.; Gary L. Kanter, M.D.; Richard A. Greer, Dr. [sic], M.D.;
Stewart Marchman Act Behavior Healthcare; and University of Florida.
the order as to the other providers subject to Shands’ non-party subpoenas:
Cynthia J. White, M.D.; Gary L. Kanter, M.D.; Richard A. Greer, Dr. [sic], M.D.;
Stewart Marchman Act Behavior Healthcare; and University of Florida.
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