Posted by Nydia Streets of Streets Law in Florida Divorce

Can a party subpoena all medical records in a Florida divorce? The answer depends on what is at issue in the case, and whether or not the party requesting the records has a good reason for being entitled to them. Take the case Brooks v. Brooks, 239 So.3d 758 (Fla. 1st DCA, 2018) in which the wife subpoenaed the husband’s medical, psychotherapist, pharmacy and employment records based on her allegations of domestic violence and the husband’s angry tirades during custody exchanges.

According to the appellate opinion, “Wife argues that husband's mental health is relevant to child custody, which is why she is seeking his medical records from his psychotherapist and the organizations that participated in his treatment. She also claims that his personnel file from his 2013–2014 employer may contain parts of his medical record and his application for disability, also relevant to his mental health. She asserts that this personnel file could also be relevant to whether husband is voluntarily underemployed, which could affect his child support obligation. Finally, she argues that husband's application and offer letter from his 2015–2016 employer will be relevant to establishing his child support obligations because it will contain salary information.”

The trial court ordered that the documents the wife subpoenaed be provided to the husband’s counsel and then to the court for an in-camera inspection to determine what documents would be given to the wife. An in-camera inspection is one usually done in chambers with the judge overseeing what is produced and ruling on the spot what should be produced to the party requesting the documents. This is expected to safeguard against confidential or privileged information from being released.

The husband appealed the trial court’s order, and as to the medical records, the appellate court agreed with the husband, holding, “The records of husband's treating physician, the medical facility, and the pharmacy fall within the ambit of the [psychotherapist-patient privilege], and that privilege is only waived under the extreme circumstances described in the case law. Wife has not alleged the occurrence of a calamitous event that would qualify as the extreme circumstance necessary to invade husband's privileged communications and documents related to the treatment of a mental health condition. In fact, wife was not aware of a single problem regarding husband's care of their child. She only alleged that he previously committed an act of domestic violence against her and would curse her out when they met to exchange custody. Neither of these claims qualifies as the type of extreme condition that would allow the disclosure of husband's medical records.”

As to the husband’s employment records, the appellate court agreed these records may be relevant only as to financial information since child support was at issue in the case. Therefore, the trial court was ordered to hold an in-camera inspection of the employment records so that only income information was released and not any information relating to the husband’s mental health or the like.

If you are concerned that your private information may be sought by the opposing party in your case, contact a Miami divorce attorney to assist you in defending against improper discovery. A consultation will help you understand what is at stake and what you can do about it.