To: Re:
From: Date:
FACTS
At all material times, a contract existed between Peter Pierce and Donny Do Point, and the subject matter of the contract was painting of Peter Pierce’s house. After doing all the calculations and after incorporating all the costs of the contingencies, the actual contractual amount settled at $10,000 which Peter paid.
However, everything did not go as planned since, at the end, Peter informed Donny that he had been fired with immediate effect for occasioning a breach of contractual terms for going for a cheaper and poor quality of paint, in breach of a contractual term that Donny was to settle for a higher quality that was long lasting, and second, Donny had painted a layer of the fresh paint on top of an old layer of paint without first ensuring that the entire room(s) had been pressure cleaned which would remove all the peeling hence ensure that the fresh layer of paint was painted on a cleaned surface. Further, Donny missed a few days of work and cited that a severe migraine was the reason is to why he missed the work
What is most intriguing in this case is that, Peter relied on information that was passed to him by the paint manager a one Mr. Nicholas Thomson and Donny’s doctor a one Dr. Kaufman. On his part, Mr. Kaufman informed Peter that a one Walt, had informed him that Donny had settled fpr a cheaper and lesser quality paint because he wanted money to help his brother who had been involved in an accident, the same information was given to Peter by the doctor and even further, the doctor told Peter that Donny had been remorseful for all the misrepresentations but he had no other means of raising money.
Further, Dr. Kaufman had informed Peter that Donny did not make two doctor’s appointment and that Donny had gone to him since he was undergoing through a severe migraine and that he had prescribed to Donny a non-narcotic with a capacity of not interfering with his ability to drive or work, yet, Donny had told Peter that he was on a narcotics prescription which would cure the migraines. These two testimonies were admitted as evidence at the trial stage of the case.
ISSUES
From the foregoing, two broad issues arise:
- Whether the statements by Dr. Kaufman and Mr. Nicholas would be admitted as evidence for clearly, they were hearsay statements?
- Whether, the information about Donny’s doctor appointment, sickness and prescription was privileged?
RULES
Under Section 90.801 of the Florida’s Evidence Code, it defines Hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Further, under section 90.803 of the Evidence Code, it enumerates the various exceptions for the Hearsay Rule, and under codification 4, the Code provides that, for the purposes of medical diagnosis or treatment, a statement is admissible as evidence if those statements are made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or extent source thereof, insofar as reasonably pertinent to diagnosis or treatment.
On the rules of privilege, the Evidence Code at Section 90.503 provides for the Psychotherapist-patient privilege and it defines a psychotherapist as a person authorized to practice medicine in Florida and other Treatment Personnel of facilities licensed by the state. The Code provides that a communication between the doctor and the patient is confidential if it is not intended to be disclosed to any third person, unless the court or other persons request for that information.
ANALYSIS
- On the first issue, the issue was whether the statements by the doctor and the paint manager were lawfully admitted as evidence as they were hearsay. From the set f facts, it is beyond peradventure that the statements that were relied by Peter in firing Donny were made to him by the paint manager who had been told by somebody else by the name Walt. From the code, and especially under section 90.801, the statements were made by another person who was not, under any circumstance subject to any examination before the court, at no point was Walt brought before the court for examination. Further, under the exceptions of the hearsay rule, which enumerate that, for a hearsay statement to be made before the court, it must be for the purpose of medical diagnosis and they are made by a person who is legally responsible to make the statements on behalf of the person who is unable to make the statements. After a careful scrutiny of the facts, it is a common ground that the statements were made to Peter, by the doctor, after the treatment and diagnosis was over, further, they were made by the doctor, who, from the set of facts, was not legally responsible to make such a communication. So, in all honesty, the trial judge erred, both in fact and in law, in admitting that statement made by the doctor and the paint manager.
- On the issue of privileged information, the code at section 90.503 is couched in clear terms, the information was privileged and confidential, and it was not canvassed on the facts that the court had requested for the information from the doctor. Therefore, the second privileged information test has proved that the judge also erred in law and in fact in admitting the statement made by Dr. Kaufman.
CONCLUSION
- From the law, and the analysis herein, the judge clearly erred in admitting the stamen made by Mr. Nicholas Thompson and Dr. Kaufman, for they failed, as I have shown, the test, as they were basically hearsay. And I beseech this court, the Court of Appeal, to throw the statements into the dustbins.
- As observed in One(1) above, the judge further erred in law and in fact still, the rules on privilege are clear, the statements were privileged, and the court had not requested for the statements.
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