Florida/Georgia Personal Injury & Workers Compensation

...7. ANALYSIS We conclude that while the determinations by both the trial court and the district court relied upon general principles of Florida tort law and general application of the "impact rule," such does not accommodate the intent and purpose of section 491.0147 of the Florida Statutes and renders its protection meaningless....

...aintiffs have presented a cognizable claim for recovery of emotional damages under the theory that there has been a breach of fiduciary duty arising from the very special psychotherapist-patient confidential relationship recognized and created under section 491.0147 of the Florida Statutes....

...Legislature has declared "affects physical and psychophysical survival." It is with this background and structure that the Legislature intended to protect the delicate and fragile disclosures within the professional relationship when it established section 491.0147 of the Florida Statutes, which states in pertinent part: "Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential." If this legislative provision is to have...

...With this backdrop of both common law and statutory protection the source of Eaker's duty to the petitioners is easily identified. The statutory scheme clearly mandated that the communications between the petitioners and Eaker "shall be confidential." § 491.0147, Fla....

...of Albuquerque, 953 P.2d at 728-29 (allowing action in tort for breach of psychological counselor's duty of confidentiality, the sources of such duty being both fiduciary relationship and state statutes). [10] We emphasize that while we determine that a duty of confidentiality exists, it is not absolute. For instance, section 491.0147(1)-(3) of the Florida Statutes delineates three instances in which communications between patient and psychotherapist are not cloaked with confidentiality (none of which applies in the instant case)....

...Clinger , the case law on the nature of the fiduciary relationship in the psychotherapist-patient and physician-patient contexts and the attendant duty of confidentiality imposed on the practitioner, along with the intent of the Legislature in passing section 491.0147 of the Florida Statutes, there is ample authority to determine that the impact rule should be inapplicable in the case before us....

...here, which effectively eviscerates the rule requiring any impact in the claim for emotional distress damages. At the outset of its analysis, the majority asserts that the lower courts' determinations "do[ ] not accommodate the intent and purpose of section 491.0147 of the Florida Statutes." Majority op. at 351 (emphasis added). Yet nothing in the express language of section 491.0147 or its legislative history comes close to expressing an "intent or purpose" to do away with Florida's long-standing "impact rule." Contrary to the majority's assertion of the existence of "clear legislative intent," majority op. at 358, the legislative history of section 491.0147 is non-illuminating as to any other intended purpose of the statute beyond the regulatory context....

...In this case, however, the Legislature has made no such authorization under the statute at issue and, therefore, strictly as a matter of statutory interpretation and this Court's jurisprudence, damages for emotional distress incurred as a result of a violation of section 491.0147 should not be recoverable in the absence of proof which satisfies the impact rule....

...Accordingly, I would answer the certified question in the affirmative. WELLS, J., concurs. NOTES [1] We have rephrased certified questions in the past to conform them more properly to the true issue under review. See, e.g., Waite v. Waite, 618 So.2d 1360 (Fla.1993). [2] Section 491.0147, Florida Statutes (1997), discussed infra, requires psychotherapists to keep confidential the substance of patient communications....

...See Palafrugell Holdings, Inc. v. Cassel, 825 So.2d 937, 939 (Fla. 3d DCA 2001); Uvanile v. Denoff, 495 So.2d 1177, 1178-79 (Fla. 4th DCA 1986); Atlantic Nat'l Bank v. Vest, 480 So.2d 1328, 1333 (Fla. 2d DCA 1985). [10] The respondent argues that because section 491.0147 does not explicitly authorize a cause of action, the petitioners may not bring a cause of action for breach of the duty that the statute imposes....

...(2006) (providing the communications between a psychiatrist and patient are privileged); § 473.316, Fla. Stat. (2006) (providing that communications between an accountant and client are privileged); § 490.0147, Fla. Stat. (2006) (providing that communications between a licensed psychologist and client are privileged); § 491.0147, Fla....

...ilege entirely in medical negligence cases. [8] On the other hand, common sense dictates that a defendant health care provider should be able to discuss patient information to defend herself in a medical negligence action brought by the patient. Cf. § 491.0147(1), Fla.Stat....

...§ 440.13(2)(f), Fla.Stat. (1993) (footnote omitted). This provision is no longer found in section 440.13(2). In fact, the language has been somewhat altered. See Ch. 93-415, § 17, Laws of Fla. (codified at section 440.13(4)(c), Florida Statutes (1995)). [6] Cf. § 491.0147, Fla.Stat. (1993) (providing for a privilege of confidentiality in communications between patients and mental health professionals). Section 491.0147 provides: Confidentiality and privileged communications.—Any communication between any person licensed or certified under this chapter and his patient or client shall be confidential....

...juries resulting from a psychotherapist's breach of his statutorily created duty of confidentiality. Id. at 351. To reach its ultimate holding, the Court had to infer a private cause of action for the breach of the duty of confidentiality created by section 491.0147, Florida Statutes (1997)....

...[16] In Gracey, this Court recognized that "the plaintiffs have presented a cognizable claim for recovery of emotional damages under the theory that there has been a breach of fiduciary duty arising from the very special psychotherapist-patient confidential relationship recognized and created under section 491.0147 of the Florida Statutes." Id....

...rtance: WHETHER AN EXCEPTION TO FLORIDA'S IMPACT RULE SHOULD BE RECOGNIZED IN A CASE WHERE INFLICTION OF EMOTIONAL INJURIES RESULTED FROM THE BREACH OF A STATUTORY DUTY OF CONFIDENTIALITY. ORDER AFFIRMED. DAUKSCH and COBB, JJ., concur. NOTES [1] See § 491.0147, Fla....

...Humana of Florida, Inc., 652 So.2d 360 (Fla.1995)(holding that the impact rule does not apply to bar actions for wrongful birth). [3] We reject without discussion the Graceys' alternative claim for reversal that we should recognize a cause of action for negligence per se based upon proof of a violation of section 491.0147 of the Florida Statutes (1997), which outlines the confidential nature of communications between persons licensed as psychotherapists and their patients....

...f the patient. The trial court dismissed with prejudice appellant's initial complaint for failure to state a common law cause of action. Appellant was granted leave to file an amended complaint in an effort to state a statutory cause of action under section 491.0147, Florida Statutes (1991)....

...That second amended complaint was subsequently dismissed with prejudice for failure to state such a statutory cause of action. The trial judge stated, in dismissing the second amended complaint, that he was unable to conclude that the permissive language of section 491.0147 created an affirmative duty to warn so as to support a cause of action for a failure to warn....

...that there is presently *543 a sufficient societal interest to protect that requires judicial activism. With that conclusion behind us, we now turn to the trial court's dismissal of appellant's attempt to allege a statutory cause of action based on section 491.0147....

...ted a statutory cause of action that did not previously exist. Section 455.2415, pertaining to communications between patients and psychiatrists, and the psychiatrist's obligations and duties relating to those communications, is similar in import to section 491.0147, relating to communications between patients and mental health workers and others licensed or certified under chapter 491....

...a law enforcement agency. No civil or criminal action shall be instituted, and there shall be no liability on account of disclosure of otherwise confidential communications by a psychiatrist in disclosing a threat pursuant to this section. . . . . . 491.0147 Confidentiality and privileged communications.—Any communication between any person licensed or certified under this chapter and his patient or client shall be confidential....

...lth patient that is rooted in the confidentiality of the relationship. It appears that Judges Cope and Gersten had concern for future causes of action that might be implied from the legislative waiver of that confidentiality in sections 455.2415 and 491.0147. In addressing that concern and that of the trial judge below, we conclude that the permissive language waiving confidentiality in sections 455.2415 and 491.0147 does not equate to the legislative creation of a cause of action not previously recognized in Florida....

...Baker ; Wilson v. Wilson, 504 So.2d 1278 (Fla. 1st DCA 1986); McIntyre v. McIntyre, 452 So.2d 14 (Fla. 1st DCA 1984). Additionally, we find any error in admitting privileged information in the psychologists' testimony, even if not within the waiver provisions of section 491.0147(3), Florida Statutes, to be harmless....

...er situations." Id. at 358. The court's analysis in Gracey focused on the alleged "breach of a duty of confidentiality" which arose from "a statutory confidential relationship." Id. at 350-51. The court gave particular attention to the provisions of section 491.0147, Florida Statutes (1997), which "require[ ] psychotherapists to keep confidential the substance of patient communications." Id....

...The court rejected the argument that the absence of an explicit authorization in the statute of private causes of action barred the plaintiffs' action for violation of the statute. And the court specifically concluded that application of the impact rule to bar a claim for violation of section 491.0147 would "not accommodate the intent and purpose of" the statute, but would "render[] its protection meaningless." Id....

...the emotional injury involved" in Gracey. In addition, the apparent "policy concerns" identified by Rowell as relevant to providing an exception from the impact rule are the same in this case as they were in Gracey. The confidentiality provisions of section 491.0147 and section 381.004(3)(f) serve the same purpose: to protect individuals from the unwarranted disclosure of highly sensitive information concerning their personal lives....

...The harm flowing from a violation of confidentiality by a psychotherapist is closely akin to the harm flowing from a breach of confidentiality with respect to an HIV test. "The only reasonable and logical injuries generally flowing from a violation" of either section 491.0147 or section 381.004(3)(f) "are emotional in nature." Gracey, 837 So.2d at 357....

...Similarly, the analogy to claims for invasion of privacy and defamation applies as much to claims for breaches of confidentiality with respect to HIV tests as it does to claims for breaches of confidentiality by a psychotherapist. Finally, whether a claim arises under section 381.004(3)(f) or section 491.0147, the emotional injury that results from the breach of confidentiality meets the standard of "foreseeability and gravity" of harm discussed in Rowell, 850 So.2d at 478, as a basis for not applying the impact rule. And "countervailing policy concerns"—that is, policy concerns militating against establishing an exception from the impact rule—are no more apparent with *213 respect to section 381.004(3)(f) than with respect to section 491.0147. Rowell, 850 So.2d at 478. In short, there is no principled basis for barring civil actions based on a breach of the statutory duty in section 381.004(3)(f) if civil actions based on a violation of section 491.0147 are not barred....

...posed liability upon mental health providers who fail to communicate a threat to potential victims or law enforcement either. See § 394.4615, Fla. Stat. (2019) (service providers under the Baker Act); § 490.0147, Fla. Stat. (2019) (psychologists); § 491.0147, Fla....