269 So. 3d 565
Fla. Dist. Ct. App.2019Background
- During a contested Florida dissolution, the parties agreed (and the court adopted) that Dr. Stanley Seidman would serve as a "reunification therapist" for the children; the court order adopted the parties' agreement but did not define Seidman’s duties or name him in the order.
- After one brief session with Estape and sessions with the children, Seidman emailed the guardian ad litem reporting concerns and some information Estape had shared; a scheduled visitation was stayed and Estape’s access to his children was delayed.
- Estape sued Seidman for breach of fiduciary duty and negligence, alleging Seidman disclosed psychotherapist-patient privileged communications; he pointed to a signed intake/informed-consent form stating communications would be kept confidential.
- Seidman moved for summary judgment claiming absolute immunity under the litigation (judicial) privilege for statements made in the course of judicial proceedings; the trial court granted summary judgment.
- The Fourth District reversed, holding that the statutory psychotherapist-patient confidentiality (section 490.0147) supersedes the common-law litigation privilege and that a material factual dispute exists whether a psychotherapist-patient relationship existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the litigation privilege bar claims for disclosure of psychotherapist-patient communications made in connection with litigation? | Estape: statutory confidentiality controls; litigation privilege cannot override §490.0147. | Seidman: absolute immunity applies to statements made during judicial proceedings, so no liability. | Held: Statutory psychotherapist-patient confidentiality prevails over common-law litigation privilege; privilege does not provide immunity here. |
| Did a psychotherapist-patient relationship exist between Estape and Seidman? | Estape: signed intake/informed-consent form and confidentiality notice create a therapist-patient relationship. | Seidman: he was court-appointed as reunification therapist and did not form a therapist-patient relationship with Estape. | Held: Material factual dispute exists; not resolvable on summary judgment. |
| Could any statutory waiver of confidentiality apply to Seidman’s disclosures? | Estape: no waiver applies; no written waiver, Seidman not a party, no imminent physical harm. | Seidman: argued disclosures tied to litigation justify revealing communications. | Held: None of §490.0147’s waiver conditions are met on this record; litigation privilege cannot supply an unstated statutory waiver. |
| Was Ross v. Blank controlling to confer absolute immunity? | Estape: Ross is distinguishable because Ross did not involve a therapist-patient relationship with the plaintiff. | Seidman: Ross supports immunity for communications during divorce proceedings. | Held: Ross is distinguishable and inapplicable where a therapist-patient relationship is asserted. |
Key Cases Cited
- Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002) (wrongful disclosure by a psychotherapist can constitute breach of fiduciary duty)
- Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992) (statements made in judicial proceedings are absolutely privileged at common law)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) (litigation privilege extends to parties, judges, witnesses, and counsel)
- Ross v. Blank, 958 So. 2d 437 (Fla. 4th DCA 2007) (litigation privilege applied to therapist’s statements where no therapist–patient relationship with plaintiff was shown)
- Acosta v. Richter, 671 So. 2d 149 (Fla. 1996) (statutory interpretation uses plain meaning)