ROBERTO ESTAPE v. STANLEY B. SEIDMAN, PH.D. and STANLEY B. SEIDMAN PH.D., P.A.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROBERTO ESTAPE,

Appellant,

v.

STANLEY B. SEIDMAN PH.D., individually, and

STANLEY B. SEIDMAN, PH.D, P.A., a Florida corporation,

Appellees.

No. 4D17-3336

[April 24, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Mily Rodriguez-Powell,; L.T. Case No. 12-25519(3).

Max R. Price of the Law Offices of Max R. Price, P.A., Miami, for

appellant.

John W. Mauro and Scott C. Cochran of Billing, Cochran, Lyles, Mauro

& Ramsey, P.A., Fort Lauderdale, for appellees.

WARNER, J.

Roberto Estape appeals a summary final judgment entered on his

claims of negligence and breach of fiduciary duty against appellee, Dr.

Stanley Seidman, a psychologist. In a contested dissolution of marriage

proceeding, Estape and his wife agreed to use Dr. Seidman as a

reunification therapist for their children, and the court approved their

agreement. Estape contends that he had a psychologist-patient

relationship with Dr. Seidman, evidenced by a document that the doctor

had him sign. He asserts that any communications between them were

required by statute to be confidential, but the doctor breached that

confidentiality, causing Estape damage. Dr. Seidman claimed that

because the communications occurred within the litigation, he was

entitled to absolute immunity based upon the litigation privilege, and the

trial court agreed. We reverse, finding that the statutory grant of

confidentiality prevails over the litigation privilege, a common law doctrine,

and there remains a question of fact as to the existence of the psychologist-

patient relationship.

During the dissolution of marriage proceedings, Estape was prevented

from seeing his children. The children saw two psychologists, and after a

time, the psychologists concluded that reunification with the father should

occur. The parties agreed to the commencement of a visitation schedule

and that Dr. Seidman would serve as the reunification therapist. Few

instructions were included in the agreement announced in court, other

than that the children were to have two sessions with Dr. Seidman prior

to the first unsupervised visitation, which was already scheduled. In

addition, Dr. Seidman, together with the children’s psychologists, could

determine whether each child should have a vacation with their father

without the other child. The court refused to make any determination

other than to adopt the agreement of the parties. The order entered by the

trial court simply states: “The Court adopts the Agreement on temporary

children’s access issues and related issues as contained in the transcript

of the hearing on May 2, 2011, as an Order of the Court, which is attached

hereto as Exhibit ‘1.’” It does not name Dr. Seidman in the order.

After one short session with Estape, and a session with the children,

Dr. Seidman sent an email to the children’s guardian ad litem, objecting

to the first scheduled visitation on the grounds that he had not had the

time to perform a sufficient evaluation and that the children were

apprehensive about seeing their father. He also related some information

conveyed to him by Estape during his short session with him. As a result,

the mother moved to stay the scheduled visitation, and it did not occur.

More proceedings involving visitation ensued, preventing Estape from

seeing his children.

Estape eventually filed a complaint against Dr. Seidman, alleging

causes of action for breach of fiduciary duty and negligence. The gravamen

of the breach of fiduciary duty claim was that Dr. Seidman had

communicated to the guardian ad litem material which Estape claimed

was privileged under the psychotherapist-patient doctrine. See Gracey v.

Eaker, 837 So. 2d 348, 353-55 (Fla. 2002) (finding that the wrongful

disclosure of confidential information by a psychotherapist constitutes a

breach of a fiduciary duty). The negligence count was also based upon

Estape’s claim that Dr. Seidman communicated to the guardian ad litem

without following standard practices for psychologists.

Dr. Seidman moved for summary judgment. He alleged that he was a

court-appointed reunification therapist and, as such, protected by

absolute immunity for statements made during the judicial proceeding.

In response, Estape set forth evidence that he had entered into a

psychologist-patient relationship with the doctor. He pointed to a form

2

that he signed when he appeared at Dr. Seidman’s office for his first

session. That form included a confidentiality statement as follows:

Information shared with a psychologist is kept strictly

confidential and is not disclosed without your written

provision. However, confidentiality is not guaranteed in cases

of (a) danger to yourself others (e.g., homicide or suicide), or

(b) situations [in] which children are endangered (e.g., sexual

or physical abuse or neglect).

The form also provided for Informed Consent:

I have read and understood the preceding statements, have

had the opportunity to ask questions about them, and agreed

to begin treatment at Associates In Behavioral Counseling.

(emphasis added). 1 The court granted the motion for summary judgment,

and after denying a motion for rehearing, it entered final judgment in favor

of the doctor, which prompted this appeal.

We review a final summary judgment de novo, recognizing that it

should be granted only when there is a complete absence of genuine issues

of material fact and the moving party is entitled to judgment as a matter

of law. Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 2006). Whether

the absolute immunity privilege applies is a question of law to be decided

by the court. See Ball v. D’Lites Enters., Inc., 65 So. 3d 637, 638 (Fla. 4th

DCA 2011).

“The law in Florida has long been that defamatory statements made in

the course of judicial proceedings are absolutely privileged, and no cause

of action for damages will lie, regardless of how false or malicious the

statements may be, so long as the statements are relevant to the subject

of inquiry.” Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla. 1992). “The

immunity afforded to statements made during the course of a judicial

proceeding extends not only to the parties in a proceeding but to judges,

witnesses, and counsel as well.” Levin, Middlebrooks, Mabie, Thomas,

Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994).

As noted in Myers v. Hodges, 44 So. 357, 360 (Fla. 1907), however, the

absolute immunity for statements in judicial proceedings arose from the

common law of England. By statute, the common law is the law of this

1

In addition, both parties referenced a deposition of Dr. Seidman, but the

deposition was not made part of the record.

3

state, but only to the extent that it is not inconsistent with the acts of the

legislature. See § 2.01, Fla. Stat. (2016).

Section 490.0147, Florida Statutes (2012), provides that

communications between a psychotherapist and patient are confidential,

but the statute establishes circumstances where the privilege may be

waived:

Any communication between any person licensed under this

chapter and her or his patient or client shall be confidential.

This privilege may be waived under the following conditions:

(1) When the person licensed under this chapter is a party

defendant to a civil, criminal, or disciplinary action arising

from a complaint filed by the patient or client, in which case

the waiver shall be limited to that action.

(2) When the patient or client agrees to the waiver, in writing,

or when more than one person in a family is receiving therapy,

when each family member agrees to the waiver, in writing.

(3) When there is a clear and immediate probability of physical

harm to the patient or client, to other individuals, or to society

and the person licensed under this chapter communicates the

information only to the potential victim, appropriate family

member, or law enforcement or other appropriate authorities.

The first principle of statutory interpretation is that statutes must be

interpreted in accordance with their plain meaning. See Acosta v. Richter,

671 So. 2d 149, 153 (Fla. 1996). Here, it is clear that the statute

establishes the confidentiality of psychotherapist communications and

very limited means of waiving that privilege. This is also consistent with

the legislative intent expressed in section 490.002, Florida Statutes, that

“in order to preserve the health, safety, and welfare of the public, the

Legislature must provide privileged communication for members of the

public or those acting on their behalf to encourage needed or desired

psychological services to be sought out.”

None of the grounds for waiver set forth in the statute apply to the

communications made by Dr. Seidman in the dissolution case. The first

section does not apply because he was not a party in that proceeding.

Second, Estape provided no written waiver, nor was any waiver provided

by any of the other family members. Finally, there is no evidence in this

record of the potential for physical harm to any persons. Therefore, if

4

Estape was a patient of Dr. Seidman, his communications with him were

entitled to confidentiality according to the statute.

The assertion of a right to disclose communications pursuant to a

litigation privilege would add another exception to the statutory grant of

confidentiality, which would be inconsistent with the plain meaning of the

statute. Therefore, the common law privilege must give way. See § 2.01,

Fla. Stat. We hold that absolute immunity for communications during

judicial proceedings does not provide immunity to a psychotherapist for

revealing communications regarding a patient contrary to section

490.0147.

There remains the question of whether Estape was a patient of Dr.

Seidman, so that psychotherapist-patient confidentiality applies. Estape

points to the document provided by Dr. Seidman and signed by Estape,

agreeing to treatment by Dr. Seidman and stating that his communications

would be kept confidential. Dr. Seidman, on the other hand, contends

that he was appointed by the court and did not have a psychotherapist-

patient relationship. A very material question of fact remains.

Provisions of both Chapter 61, Florida Statutes (2012), as well as

administrative regulations regarding psychotherapists, show that the

legislature did not intend that absolute immunity apply any time a court

appoints a therapist in dissolution of marriage proceedings. For instance,

under section 61.122, Florida Statutes (2012), regarding the

establishment of a parenting plan, a psychologist who is appointed to

develop a plan, including a time-sharing arrangement, is presumed to be

acting in good faith. The statute allows a parent, who desires to sue a

psychologist over the parenting plan recommendations, to petition the

court to replace the challenged psychologist, but it also provides for the

award of attorney’s fees to either the psychologist or the parents,

depending on which party prevails. A parent may have to overcome the

presumption of good faith, but the statute clearly allows litigation and does

not provide for absolute immunity for the psychologist. Furthermore,

section 61.125, Florida Statutes (2012), authorizes the appointment of a

parenting coordinator, whose purpose is to assist parents in dispute

resolution over parenting plans. Section 61.125(7) contains an express

confidentiality provision for communications between the parenting

coordinator, who could be a licensed therapist, and the parties. However,

section 61.125(9) provides for a limitation of liability for a coordinator,

unless the coordinator acts in bad faith or reckless disregard for the rights

of the parties.

5

Further, even if the therapist is court-appointed, pursuant to Rule

64B19-19.006 of the Florida Administrative Code, regarding

confidentiality with respect to psychotherapists, the psychotherapist

performing the evaluation is required to explain to the person being

evaluated the limits of confidentiality:

(2) In cases where an evaluation is performed upon a person

by a psychologist for use by a third party, the psychologist

must explain to the person being evaluated the limits of

confidentiality in that specific situation, document that such

information was explained and understood by the person

being evaluated, and obtain written informed consent to all

aspects of the testing and evaluative procedures.

As to Dr. Seidman’s appointment, we have no explanation of what his

duties as a “reunification therapist” were to be. This term is not used in

the statute. The mere designation of Seidman as a therapist by court-

approved agreement, provides little for us to evaluate in order to determine

what type of relationship was intended. Unlike a court appointment of an

expert to assist the court in evaluating custody or other matters in

dissolution proceedings, it does not appear in this record that any reports

were to be made to the court itself. Therefore, we cannot conclude as a

matter of law that Dr. Seidman had absolute immunity under the

circumstances of this case.

Dr. Seidman points to this court’s decision in Ross v. Blank, 958 So. 2d

437 (Fla. 4th DCA 2007) as supporting his claim of absolute immunity.

Ross, however, is distinguishable, as it did not involve a psychotherapist-

patient relationship. There, in divorce proceedings, a wife and her

daughters saw Blank, a psychologist. Id. at 439. During those sessions,

Blank learned information regarding Ross, the father, which suggested to

her the potential of child sexual abuse. Id. After consulting with others,

she reported Ross to the Department of Children and Families. Id. Ross

sued Blank for defamation, both with respect to the report to DCF and

other communications made by Blank during the course of the divorce

proceedings, as well as negligence. Id. Blank moved for summary

judgment as to all claims asserted, and as to those allegedly defamatory

statements made during the divorce proceedings, Blank claimed absolute

immunity based upon the litigation privilege. Id. The trial court granted

the motion, entering judgment against Ross. Id. at 439-40. On appeal,

we agreed that the statements made by the psychologist to the court-

appointed custody evaluator, and also to the guardian ad litem, were

protected by the litigation privilege. Id. at 441. Blank, however, did not

6

have a psychotherapist-patient relationship with Ross, the father.

Therefore, it is inapplicable to the issue presented in this case.

For the foregoing reasons, we reverse the final summary judgment

entered by the trial court. There exist material issues of fact as to whether

a psychotherapist-patient relationship existed between Estape and Dr.

Seidman or whether other statutes applied which would preclude the

assertion of absolute immunity. Because the trial court’s judgment

exclusively involved the application of the litigation privilege, we do not

determine whether the statements made constituted the communication

of privileged information.

Reversed and remanded for further proceedings.

GROSS, J., and WEISS, DALIAH, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

7