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Court Sides With Patient On Confidentiality

4th District Court of Appeals

A South Florida appeals court Wednesday ruled that a sheriff's deputy cannot testify about a conversation he heard between a patient he was guarding and a psychotherapist in a hospital emergency room.

The 4th District Court of Appeal ruling said the facts of the case presented a first-of-its kind issue in Florida. The Broward County case stemmed from the arrest of Avery Topps on a felony cruelty-to-animals charge after a dog was stabbed to death.

After allegedly stabbing the dog, Topps tried to admit himself to a hospital, and a deputy went to the hospital to arrest him. An emergency-room doctor acting as a psychotherapist conducted an examination to determine whether Topps should receive a psychiatric commitment or be cleared to go to jail.

The deputy was present for security reasons and overheard Topps tell the doctor that he stabbed the dog. A circuit judge ruled that the deputy could not testify about the statement made by Topps, leading prosecutors to appeal.

A three-judge panel of the 4th District Court of Appeal upheld the circuit judge's decision. "Admitting this statement into evidence over objection would effectively mean that an individual in custody must forego his right against self-incrimination to obtain necessary medical diagnosis and treatment,'' said Wednesday's opinion, written by Judge Mark Klingensmith and joined by Judge Carole Taylor and Judge Spencer Levine.

"Requiring the relinquishment of this constitutional right as a condition of medical diagnosis and treatment for persons placed under arrest or otherwise in custody would be unconscionable. If the privilege were to be nullified by the mere presence of a law enforcement officer, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances giving rise to the need for treatment will probably result in prosecution or litigation. Given these facts, a person in (the) defendant’s position might not receive appropriate treatment, knowing they risked losing their confidentiality by answering questions posed to them by their psychotherapist."

Bill Could Compensate Sexual Abuse Victim

A girl who was sexually and physically abused after the state placed her in the home of a relative could receive $800,000 in compensation, under a bill filed this week by Sen. Jeremy Ring, D-Margate.

The proposal (SB 40) comes as senators file what are known as "claim" bills for the 2015 legislative session.

The girl, identified in the bill only by the initials L.T., was removed from her mother's custody in 1995 and placed in the home of a great aunt and uncle, according to the bill. The uncle in 1997 pleaded no contest to committing a sex offense on another child under the age of 16 and received probation, but L.T. and her brother were kept in the home, the bill said.

The Department of Children and Families investigated in 2003 after a call to a hotline reported that L.T. was being abused by the uncle, but the agency concluded the girl was not at risk. The girl ran away in 2005 because of sexual and physical abuse, and the state ultimately removed her and her brother from the home.

The bill said L.T. has repeatedly tried to commit suicide and has been in and out of psychiatric facilities, though she now attends a university. A lawsuit was filed on L.T.'s behalf, leading to a settlement in which the state agreed to pay $1 million. Sovereign immunity laws limit the amount the state can pay to $200,000, unless lawmakers approve a claim bill to pay a higher amount. Ring's bill would lead to payment of the remaining $800,000.

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