DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011
STATE OF FLORIDA,
Appellant,
v.
JEFFREY SINGMING SUN,
Appellee.
No. 4D10-3514
[June 1, 2011]
GROSS, C.J.
In this prosecution for doctor shopping, the trial judge suppressed the
defendant’s patient contracts and statements from his doctors, which a
police officer obtained without a subpoena or warrant, a n d denied
suppression of the defendant’s pharmacy records, likewise obtained
without a subpoena or warrant.1 The state appeals that part of the order
concerning the medical records, and the defendant cross-appeals the
court’s ruling on th e pharmacy records. We affirm the order in all
respects.
I. FACTS
The facts are undisputed. A deputy arrested Jeffrey Sun’s brother for
driving under the influence. In the car, the deputy found a notebook.
Seeing that the notebook contained information on different pharmacies
a n d dollar amounts, the deputy suspected doctor shopping.
This
suspicion led him to turn the notebook over to Detective Eric Keith.
Detective Keith inspected the notebook and started an investigation that
brought him to a CVS pharmacy in Juno Beach. There, Detective Keith
sought the brother’s prescription history. Th e pharmacist helpfully
pointed out that the brother had a twin, Sun, and gave Detective Keith
patient profiles for both men. Visiting several other area pharmacies,
1We previously affirmed without opinion a similar order from the trial judge in State
v. Vandyne, 50 So. 3d 1151 (Fla. 4th DCA 2010) (table decision). In fact, because the
facts and issues in this case were essentially the same as those in Vandyne and other
consolidated doctor-shopping cases, the trial judge incorporated the order from those
cases into the order on appeal in this case.
Detective Keith obtained Sun’s patient profile from each, all without a
warrant or a subpoena.
The investigation shifted into its next phase.
Detective Keith
compared all of Sun’s patient profiles to determine whether Sun had
gotten the same or similar medications from two or more physicians
within a thirty-day period. Sun had. Detective Keith proceeded to
contact the three prescribing physicians. He asked each if they had a
patient in their care with Sun’s name and birth date, and each said yes.
When asked, each doctor denied knowing Sun had been seeing other
doctors who had been giving him the same or similar prescriptions. They
provided written statements to that effect and handed over Sun’s signed
patient contracts. In his probable cause affidavit, Detective Keith noted
“they did not disclose the nature of any of Sun’s underlying health
condition(s) that [necessitated] issuance of the prescriptions.” As with
the pharmacy records, Detective Keith had neither a warrant nor a
subpoena for these items.
The state charged Sun with oxycodone trafficking, contrary to
subsection 893.135(1)(c)1.a., Florida Statutes (2009), and withholding
information from a practitioner, which is prohibited b y subsection
893.13(7)(a)8., Florida Statutes (2009).
Subsection 893.13(7)(a)8.
proscribes the withholding of information from a practitioner to obtain a
prescription for a controlled substance, when the person has obtained
the same or a similar prescription from another practitioner within the
past thirty days. This practice is known as doctor-shopping.
Sun moved to suppress the pharmacy records, the patient contracts,
and the doctors’ statements. Sun offered three legal bases in support of
the items’ suppression. First, he argued Detective Keith violated section
456.057, Florida Statutes (2009), which provides for the confidentiality of
medical records and information and sets forth those circumstances that
allow law enforcement to obtain them. Second, he contended that
Detective Keith’s taking of the items violated his right to privacy under
Article I, Section 23 of the Florida Constitution. Finally, Sun asserted
the seizure was illegal under Article I, Section 12 of the Florida
Constitution.
After a hearing, the trial judge granted Sun’s motion as to the patient
contracts and doctors’ statements, but denied it as to the pharmacy
records. Florida’s constitutional right to privacy and statutory doctorpatient privilege protected the patient contracts and doctors’ statements,
and Detective Keith failed to follow the section 456.057 procedure to
obtain them. Accordingly, the judge suppressed them. He ruled,
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however, that subsection 893.07(4), Florida Statutes (2009), empowered
Detective Keith to obtain the pharmacy records without a warrant or
subpoena, so he did not grant the motion to suppress those items.
II. THE STATE’S APPEAL
In challenging the suppression of Sun’s patient contracts and doctors’
statements, the state argues that Sun’s right to privacy and doctorpatient privilege were reduced once Detective Keith discovered possible
doctor shopping, a criminal act implicating the state’s compelling interest
in drug abuse prevention and control. The state’s narrow focus on its
interest in obtaining the items misses the point. This case is not about
the state’s interest in curbing drug abuse. Rather, it is about what the
police can and cannot do in furthering that interest. We agree with the
trial judge that Detective Keith wholly failed to follow the statutory
procedure to obtain the items, and that suppression was the proper
remedy.
A. The Relevant Law
Our analysis begins with Article I, Section 23 of the Florida
Constitution, which in pertinent part provides: “Every natural person has
the right to be let alone and free from governmental intrusion into the
person’s private life except as otherwise provided herein.” This right to
privacy is fundamental but not absolute. State v. Johnson, 814 So. 2d
390, 393 (Fla. 2002). Thus, the right will yield to a compelling state
interest, a requirement that is satisfied b y an “ongoing criminal
investigation . . . when there is a clear connection between illegal activity
and the person whose privacy has allegedly been invaded.” Id. The state
constitutional right to privacy protects medical records. See id. (“A
patient’s medical records enjoy a confidential status by virtue of the right
to privacy contained in the Florida Constitution . . . .”).
In addition to the constitutional right to privacy, section 456.057,
Florida Statutes (2009), creates a broad doctor-patient privilege of
confidentiality that protects both medical records and communications
between a person and his doctor. See Acosta v. Richter, 671 So. 2d 149,
150˗51, 154, 156 (Fla. 1996) (contrasting the pre-1988 version of the
statute that created “a limited statutory privilege of confidentiality for
certain medical records” with the post-1988 version, similar in material
respects to the current version, that created “a broad and express
privilege of confidentiality as to the medical records and the medical
condition of a patient” or, stated differently, “a physician-patient privilege
of confidentiality for the patient’s personal medical information”).
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Section 456.057 also lays out the procedures a third party must
follow to obtain the release of medical records a n d confidential
information. Similar to the hospital records statute at issue in Johnson,
section 456.057 represents a “legislative attempt to balance a patient’s
privacy rights against legitimate access to” the patient’s medical
information. Johnson, 814 So. 2d at 393. The statute establishes
procedural safeguards which, if followed, allow the state to obtain
protected information without contravening the privacy protection of
Article I, Section 23. See State v. Rutherford, 707 So. 2d 1129, 1131˗32
(Fla. 4th DCA 1997), disapproved on other grounds by Johnson, 814 So.
2d 390.
Because Detective Keith did not follow the statutory procedures, there
are only three real questions: (1) whether the patient contracts fall within
the scope of the right to privacy in medical records; (2) whether the
doctors’ statements fall within the scope of the doctor-patient privilege;
and, if so, (3) whether the trial judge properly suppressed the items. We
answer all three in the affirmative.
B. The Patient Contracts
The first subsection relevant to the state’s appeal is 456.057(7)(a),
Florida Statutes (2009), which applies to medical records. In pertinent
part, that subsection provides that
such [medical] records may not be furnished to, and the
medical condition of a patient may not be discussed with,
any person other than th e patient or the patient’s legal
representative or other health care practitioners and
providers involved in the care or treatment of the patient,
except upon written authorization of the patient. However,
such records may be furnished without written authorization
under the following circumstances:
....
3. In a n y civil or criminal action, unless otherwise
prohibited by law, upon the issuance of a subpoena from a
court of competent jurisdiction and proper notice to the
patient or the patient’s legal representative b y th e party
seeking such records.
§ 456.057(7)(a). To obtain medical records, the statute requires law
enforcement to obtain a subpoena after notice to the patient. See id.
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The definition of medical records, and thus the scope of subsection
(7)(a), is provided in the immediately preceding subsection: “reports and
records relating to [a doctor’s] examination or treatment [of the patient],
including X rays and insurance information.” § 456.057(6); see also
State v. Shukitis, 35 Fla. L. Weekly D2470, at *3 (Fla. 2d DCA Nov. 5,
2010) (looking to subsection (6) for the definition of subsection (7)(a)’s
“such records”).
Appellate courts have faced similar issues of scope. In those cases,
the trial courts did not consider the applicability of subsection
456.057(7)(a) to records and information obtained from physicians, so
the appellate courts remanded with instructions to “make specific
findings as to which portions of the physician information amounted to”
medical records per subsection (6). Shukitis, 35 Fla. L. Weekly at __. See
also State v. Wright, 36 Fla. L. Weekly D725 (Fla. 4th DCA Apr. 6, 2011)
(same); Lamb v. State, 55 So. 3d 751 (Fla. 2d DCA 2011) (same); State v.
Herc, 36 Fla. L. Weekly D115 (Fla. 2d DCA Jan. 14, 2011) (same).
There is no need to remand this case for the trial judge to determine
whether the patient contracts were medical records.
This case is
procedurally distinguishable from the second district’s cases because the
trial judge here applied the correct statute in evaluating the patient
contracts. He correctly found that the contracts were medical records
within the meaning of subsection 456.057(6).
The state urges us to narrowly define medical records as only those
records “having to do with the actual examination and treatment of the
patient,” which would exclude records involving information provided
“prior to the examination, or not having anything to d o with the
examination or treatment.” We reject this reading. The plain language of
the statute provides that medical records are “reports a n d records
relating to [a doctor’s] examination or treatment [of the patient],
including X rays and insurance information.” § 456.057(6). A patient
contract is a record “relating to” the patient’s treatment—it is the
document that starts the treatment.2
The inclusion of “insurance
2We
find support for this interpretation in the relevant rule of the Florida
Administrative Code. Cf. Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutory Construction § 31:6 & n.1 (7th ed. 2010) (“Administrative regulations have
been frequently used as guides to determine the meaning of statutory provisions.”
(footnote omitted)).
That rule requires physicians to keep as medical records
agreements between the patient and physician. See Fla. Admin. Code R. 64B89.013(3)(f) (2009) (under the heading “Medical Records,” requiring physicians “to keep
accurate and complete records to include, but not be limited to: . . . 8. Instructions and
agreements”).
See also Robert I. Rubin, Police Requests for Patient Narcotics
Agreements: Placing Physicians Between a Rock and a Hard Place, Fla. Med. Mag., Fall
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information” within the definition indicates a broad scope, since such
information exists outside of the doctor’s examination of the patient.
Accordingly, we hold that the patient contracts that Detective Keith
obtained from S u n ’ s doctors were medical records protected by
subsection 457.057(7)(a).
C. The Doctors’ Statements
We now turn to the statements from Sun’s doctors. The relevant
subsection is 456.057(8), Florida Statutes (2009). It provides in full:
Except in a medical negligence action or administrative
proceeding when a health care practitioner or provider is or
reasonably expects to be named as a defendant, information
disclosed to a health care practitioner by a patient in the
course of the care a n d treatment of s u c h patient is
confidential and may be disclosed only to other health care
practitioners and providers involved in the care or treatment
of the patient, or if permitted by written authorization from
the patient or compelled b y subpoena at a deposition,
evidentiary hearing, or trial for which proper notice has been
given.
Id.
Based on this plain language, the statute creates only four exceptions
that allow doctors to break the privileged relationship and disclose
confidential information:
(1) to other health care providers involved in the care and
treatment of the patient; (2) if permitted b y written
authorization from the patient; (3) if compelled by subpoena;
and (4) to attorneys, experts, and other individuals necessary
to defend the physician in a medical negligence action in
which the physician is or expects to be a defendant. No
other disclosures are statutorily permitted . . . .
2008, at 23, 27 (“A Narcotics Agreement is an ‘instruction’ or an ‘agreement.’ Although
Florida Statute § 456.067 is silent concerning whether a Narcotics Agreement is a
medical record, the Florida Administrative Code clearly states that it is a medical
record, and thus is subject to confidentiality protection.”).
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Lemieux v. Tandem Health Care of Fla., Inc., 862 So. 2d 745, 748 (Fla. 2d
DCA 2003) (citation omitted) (footnote omitted) (citing Acosta v. Richter,
671 So. 2d 149, 155˗56 (Fla. 1996)).
Detective Keith did not obtain a subpoena to reach confidential
information from Sun’s doctors, and no other exception applies. To
determine whether the doctors’ statements were “confidential,” thus
triggering the requirement of a subpoena, we must define the scope of
“information disclosed to a health care practitioner by a patient in the
course of the care and treatment of such patient.” § 456.057(8).
The state urges a restrictive interpretation of subsection 456.057(8).
To make this argument, it relies on a decision from an Ohio court, State
v. Desper, 783 N.E.2d 939 (Ohio Ct. App. 7th Dist. 2002). In that case,
the court confronted Ohio’s statutory doctor-patient privilege in a doctorshopping case that involved similar questions posed by law enforcement
to the defendant’s doctors. Id. at 947. The trial court had suppressed
the answers law enforcement received, which the appellate court found
to be error. Id. at 942, 950. Desper is, however, distinguishable. As
Sun asserts, the operative language of Ohio’s statute is different from the
operative language of Florida’s.
Superficially, Ohio’s statute is similar to ours because, like Florida,
Ohio had no common law privilege before its adoption. Id. at 947. Thus,
the privilege was “in derogation of the common law and its protections
must be strictly construed.” Id. But, Ohio’s privilege protects only
“communication[s]” that are “necessary to enable the physician . . . to
diagnose, treat, prescribe, or act for a patient.” Ohio Rev. Code Ann. §
2317.02(B)(1), (B)(5)(a) (emphasis added).
That more limited scope
excluded from the privilege a patient’s lies to his doctor, because “[a] lie
is not necessary to enable a physician to diagnose, treat, prescribe, or act
for the patient.” Desper, 783 N.E.2d at 949˗50. Because the doctors’
answers to law enforcement disclosed only the lies the defendant told in
pursuit of his doctor-shopping, the appellate court held that the trial
court erred in suppressing the doctors’ statements. Id. at 950.
In contrast to Ohio’s statute, Florida’s is broader. The plain language
protects information made “in the course of the care and treatment,” §
456.057(8), and is therefore not limited to information necessary for
treatment.
Indeed, courts have consistently held that the statute
expressly created a broad doctor-patient privilege, especially in light of
the earlier, more limited statutory privilege. See, e.g., Acosta, 671 So. 2d
at 154 (“This [statute] creates a broad a n d express privilege of
confidentiality . . . . [T]he primary purpose of the 1988 amendment was
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to create a physician-patient privilege where none existed before, and to
provide an explicit but limited scheme for the disclosure of personal
medical information.” (footnotes omitted)).
This legislative intent to create a broad privilege sets subsection
456.057(8) apart from other statutes in derogation of the common law.
The application of the interpretive rule for such statutes—that they be
strictly construed—depends on the legislature’s intent in enacting the
statute and displacing the common law. See Ady v. Am. Honda Fin.
Corp., 675 So. 2d 577, 581 (Fla. 1996) (“It is a rule of statutory
construction that a statute in derogation of the common law must be
strictly construed. A court will presume that such a statute was not
intended to alter the common law other than by what was clearly and
plainly specified in the statute.” (citations omitted)). Thus, when the
legislature writes a broad statute derogating the common law, the courts
will honor the legislative intent to read the statute broadly.
The supreme court has implicitly held this to be the case with the
doctor-patient privilege. In Castillo-Plaza v. Green, 655 So. 2d 197, 201
(Fla. 3d DCA 1995), the third district applied the strict interpretation rule
to the 1988 amendment to limit the privilege.
In dissent, Judge
Jorgenson understood the amendment’s plain language to broaden the
scope of the privilege, supporting his reasoning with the privilege’s
historical and public policy roots. Id. at 206 & n.4 (Jorgenson, J.,
dissenting). When th e supreme court disapproved Castillo-Plaza in
Acosta, it cited Judge Jorgenson’s reasoning with approval when it
concluded that the amendment’s primary purpose was to create a “broad
and express privilege of confidentiality.” 671 So. 2d at 154˗55 & n.7
(citing Castillo-Plaza, 655 So. 2d at 206 n.4 (Jorgenson, J., dissenting)).
Finally, the state’s argument suggests that it reads a crime or fraud
exception into subsection 456.057(8). The trial judge correctly concluded
that there is n o such exception, and we will not interfere with the
legislature’s authority by creating one. Cf. State v. Famiglietti, 817 So. 2d
901, 912 n.12 (Fla. 3d DCA 2002) (Sorondo, J., dissenting) (“In Florida,
only the attorney-client privilege a n d th e accountant-client privilege
contain crime-fraud exceptions.”).
Given the language and history of Florida’s statutory doctor-patient
privilege, we hold that the privilege existing between Sun and his doctors
protected the statements the doctors made to Detective Keith.
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D. Suppression
Having determined the items in this case fall within the ambit of the
relevant statutes, and that Detective Keith did not follow the proper
procedures to obtain them, we must next determine whether suppression
was the proper remedy. When law enforcement does not comply with the
procedural requirements of statutes like the ones here, the items
obtained should be suppressed when law enforcement made no good
faith effort to comply. See Johnson, 814 So. 2d at 393˗94.
In considering the question, we are aware that Florida is the national
epicenter for prescription drug abuse, a plague that is facilitated by pill
mills and doctor shopping.3 Prosecutions like this one are designed to
criminally sanction those involved. However, the efforts in pursuit of
that goal must still comply with the law—a compliance that law
enforcement can achieve with little extra effort.
As the trial judge wrote in the order on appeal:
Given the fact that these statutes were passed into law
over a decade ago, and that the State Attorney’s Office for
the 15th Judicial Circuit has handled similar cases and is
well aware of the mandated procedures, it is almost
incomprehensible that law enforcement proceeded in the
manner as they did herein. Other than one’s expectation of
privacy in one’s personal effects and papers in our homes,
Americans next most hold as intensely personal and private
the status of their health, medical treatment, medical advice
and therapy.
Suppression is the only remedy to sanction this police
misconduct and deter similar misconduct. The danger of the
law enforcement practices in this case are amply
demonstrated by the willingness of medical professionals to
surrender private medical records and engage in discussions
regarding private and privileged communications concerning
their treatment of individuals on the mere naked display of
authority by law enforcement. Without court intervention
a n d review as mandated b y statute, countless innocent
3See, e.g., Don van Natta Jr., Agents Raid Florida Clinics in Drug Crackdown, N.Y.
Times, Feb. 24, 2011, at A16 (describing “storefront clinics in Miami-Dade, Broward
and Palm Beach Counties” as “a national clearinghouse for illegal prescription drugs
and highly addictive painkillers like oxycodone,” and that “South Florida has long been
a place where prescription drugs could be obtained easily and cheaply”).
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patient records are subject to examination and review by
well-meaning but misguided law enforcement officials.
Moreover, the procedures mandated b y statute and
decisional law, which are well known to the State and have
been followed in other cases, could have been easily followed
and complied with in [this] prosecution[] designed to address
the pervasive problem in this community of “doctor
shopping” a n d th e drug abuse which would necessarily
follow. Instead, law enforcement officials ignored the law
a n d to o k investigative shortcuts to build [a] case[] that
discounted the important privacy interests attendant to
medical records and information.
(Citations omitted.)
We agree with the trial judge’s implicit conclusion that Detective
Keith’s conduct displayed a lack of good faith to comply with the
statutes. That conduct requires suppression of the medical records and
confidential information that he obtained.
Application of the
exclusionary rule where there has not been a good faith effort to comply
with subsection 456.057(8) should “instill in those particular
investigating officers, or in their future counterparts, a greater degree of
care toward the rights of” a patient. State v. White, 660 So. 2d 664,
666˗67 (Fla. 1995) (quoting United States v. Leon, 468 U.S. 897, 919
(1984) (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974))).
Law enforcement does not have unlimited access to a person’s
medical records and the confidential information he has shared with his
doctors. In enacting the procedure set forth in section 456.057, our
legislature struck a balance between a person’s right to keep medical
matters private and the state’s interest in obtaining that information in
certain circumstances. Because Detective Keith made no good faith
effort to comply with that procedure, we affirm the trial judge’s
suppression.
III. SUN’S CROSS-APPEAL
In the cross-appeal, Sun argues that the trial court should have also
suppressed the pharmacy records Detective Keith obtained without a
subpoena or a warrant. We disagree.
As we recently held in State v. Wright, “the deputy’s obtaining of the
pharmacy records was authorized by section 893.07(4), Florida Statutes
(2009), and . . . the statute does not violate Article I, Section 23 of the
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Florida Constitution.” 36 Fla. L. Weekly D725 at *1 (Fla. 4th DCA Apr. 6,
2011) (citing Hendley v. State, 36 Fla. L. Weekly D388 (Fla. 2d DCA Feb.
18, 2011); State v. Yutzy, 43 So. 3d 910 (Fla. 2d DCA 2010); State v.
Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010); State v. Carter, 23 So. 3d
798 (Fla. 1st DCA 2009)).
With respect to the Fourth Amendment argument Sun raises on
appeal, we construe it to be an as-applied challenge and deem it waived
because it was not clearly raised below. See Trushin v. State, 425 So. 2d
1126, 1129˗30 (Fla. 1982) (“The facial validity of a statute, including an
assertion that the statute is infirm because of overbreadth, can be raised
for the first time on appeal . . . . The constitutional application of a
statute to a particular set of facts is another matter and must be raised
at the trial level.”); see also State v. Hodges, 616 So. 2d 994, 994 n.1
(Fla. 1993) (“Such a[n] [as-applied] challenge requiring resolution of
extensive factual matters cannot be raised for the first time on appeal.”
(citing Trushin)). Cf. State v. Fernandez, 36 So. 3d 120, 121 (Fla. 2d DCA
2010) (where the defendant expressly argued in her motion to suppress
that subsection 893.07(4) was unconstitutional as applied to the
inspection and seizure of her prescription records).
Affirmed.
HAZOURI and CIKLIN, JJ., concur.
*
*
*
Appeal and cross-appeal of a non-final order from the Circuit Court
for the Fifteenth Judicial Circuit, Palm Beach County; John S.
Kastrenakes, Judge; L.T. Case No. 2009CF016355AXX.
Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried,
Assistant Attorney General, West Palm Beach, for appellant/crossappellee.
Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellee/cross-appellant.
Not final until disposition of timely filed motion for rehearing.
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