Doctor Shopping Charges in Florida in Light of the Constitutional Right to Medical Privacy and Other Statutory Protections

By Gregg S. Lerman, Board Certified Trial lawyer

Throughout Florida, and likely throughout the country, individuals are being charged with "doctor shopping" by prosecutors. Citizens, who often become addicted to prescriptions medications such as Oxycodone due to the misfortune of automobile accidents or having suffered some other injury, are being dragged into the criminal justice system. It is an abyss that to often leads to the destruction of not only the individual but of entire families. They are faced with arcane mandatory-minimum sentences for what are relatively small amounts of pills. It is an instance where the state penalties far exceed the federal penalties. It may be trite to say but the state penalties associated with these cases treat the symptom rather than the problem. Even those who are reselling drugs obtained in violation of doctor shopping laws are more often than not doing so to support their own habit that has been fueled by pain management clinics that seem to spring up like McDonalds selling easy relief with out any real medical treatment or diagnosis.

The two most popular charges are Trafficking under F.S. 893.135 and it's mandatory minimum penalties and Withholding Information From a Practitioner, F.S. 893.13(7))a)8 and 9 also known as the "Doctor Shopping" Statute. It is the violation of the "Doctor Shopping" laws that gives rise to the Trafficking charges based on the quantity of the pills obtained. Prosecutions have occurred where there is no evidence of the possession other than the filling of the prescription. The state simply calls an expert testify as to what a pill would weigh as well as the controlled substance contained in the pill assuming the prescription was properly filled.

In their zeal to prosecute, law enforcement is running rough shod over individual's medical privacy rights by going into pharmacies and doctors offices demanding records and information about patient's medical history, including what controlled substances have been prescribed and dispensed. They march in sans any subpoena, court order or warrant.

Patient's medical records enjoy a confidential status by virtue of the right of privacy contained in Article I, Section 23, Florida Constitution. State v. Johnson, 814 So.2d 390, 393 (Fla. 2002); McAlevy v. State, 947 So.2d 525, 529 (Fla. 4DCA 2006). However, the right of privacy will yield to a compelling state interest such as the control and prosecution of criminal activity. Johnson, 814 So.2d at 393. The Florida legislature sought to balance the right of privacy guaranteed in Article 1, Section 23 and the need for the State to conduct criminal investigations by passing laws that established procedural safeguards that are set out in both F.S. 395.3025 and 456.057. Under both statutes the State may subpoena medical records in a criminal investigation but must give the notice to the patient allowing time for the individual to state legal objections. If an objection is stated the patient has a right to a hearing where the State has to establish the need or relevancy of the information sought. Id. The State's investigative subpoena power under F.S. 27.04 does not trump the procedural requirements of either of the previously mentioned statutes. Id. The alternative to the issuance of a subpoena with proper notice is to request a search warrant. The use of a search warrant for the sought after records requires no prior notice to the patient but the standard is higher due to the need to establish probable cause. Limbaugh v. State, 887 So.2d 387 (Fla. 4DCA 2004); State v. Rattray, 903 So.2d 1015 (Fla. 4DCA 2005).

Florida law enforcement agents claim some law enforcement exception to the warrant or subpoena requirement under F.S. 893.07, as well as, Federal HIPAA's own confidentiality requirements. That claim is clearly misplaced. HIPAA states that "medical records must be released . . . only in accordance with Federal or state laws, court orders or subpoenas." See 42 C.F.R. 482.24 and 45 C.F.R. 164.508. The confidentiality requirements are applicable to pharmacies under HIPAA. 45 C.F. R. 160.103 [Health care includes the . . . Sale or dispensing of a drug, device, equipment or other item in accordance with a prescription.] Pursuant to F.S. 458.331(m) (2008) the term "medical records" includes "records of drugs prescribed, dispensed, or administered." Furthermore F.S. 456.001 (2008) defines a "health care practitioner" as: "any person licensed under . . . Chapter 465." Additionally, records owner means any health care practitioner who generates medical records after making a physical or metal examination of, or administering treatment or dispensing legend drugs to any person. [Emphasis added.]

There is no unfettered law enforcement exception included in either HIPA or F.S. 893.07. What does exist under HIPAA permits a "covered entity", i.e. medical doctors and pharmacists, to "disclose protected health information . . . in compliance with and as limited by the relevant requirements of . . . [a] court order or court-ordered warrant, or subpoena or summons issued by a judicial officer." 45 C.F.R. 164.512(f)(1)(i)(ii)(A). Furthermore, the confidentiality and procedural requirements of F.S. 456.07 apply to "Pharmacists and pharmacies licensed under chapter 465" as well as medical doctors. These procedural requirements are exactly what HIPAA is referring to when permitting disclosure of confidential records "in accordance with . . . state laws, court orders or subpoenas." Furthermore, it needs to be clear that F.S. 456.057(7)(a) applies not only to records but to discussions about a patient as well. Florida Department of Corrections v. Abrel, 969 So.2d 201 (Fla. 1997); State v. Buchanan, 610 So.2d 467 (Fla. 2DCA 1992). It should be remembered that federal laws such as HIPAA create a floor of privacy protections, not a ceiling. The Florida Constitution and the aforementioned statutes set the procedural standards and protections that must be complied with in order to obtain the records and have the discussions that have occurred in this matter.

F.S. 893.07 is not some broad exception to the Fourth Amendment of the United States Constitution or to Article 1, Sections 12 and 23 of the Florida Constitution. F.S. 893.07 allows warrantless, routine administrative searches of pharmacies. Cushing, D.D.S. v. Department of Professional Regulation, Board of Dentistry, 416 So.2d 1197 (Fla. 3DCA 1982). Administrative searches differ from traditional criminal searches. The Fourth Amendment only applies where the object of the search is to penalize, which is not the case with an administrative search. C.N.H. v. State, 927 So.2d 1, 3 (Fla. 5DCA 2006) citing Camara v. Municipal Court, 87 S.Ct. 1727 (1967). An administrative search is characterized as involving a "program" of inspections or a screening search and is proper when conducted as part of a scheme where the purpose is something other than gathering evidence for a criminal prosecution. C.N.H. at 3 citing Edmund v. Goldsmith, 183 F.3d 658 (7th Cir 1999); Commonwealth v. Carkuff, 804 N.E. 2d 317 (2004). An administrative search requires a neutral plan for execution; a compelling governmental interest; absence of less restrictive alternatives; and, reduced privacy rights. Id. Clearly there is a governmental interest in prosecuting "doctor shopping"; however, as stated earlier in this motion there are two statutorily and constitutionally approved alternatives available to law enforcement in order to allow for the invasion of an individuals privacy right in their medical records. An administrative search cannot be used as a subterfuge to conduct a warrantless search for incriminating evidence. Williams v. State, 903 So.2d 974, 976 - 77 (Fla. 4DCA 2005). When there is no attempt on the part of the State to comply with the statutory requirements the result is exclusion of any evidence obtained by law enforcement. State v. Rutherford, 707 So.2d 1129 (Fla. 4DCA 1997).

An administrative rule cannot contravene, enlarge or modify the provisions of a statute or constitutional right. Amison v. State, 5 So.3d 798, 801 (Fla. 2DCA 2009) [An arresting officers mistaken belief that he had the authority to detain anyone for a "regulatory inspection" in a wildlife management area did not survive a motion to suppress.] When such subterfuge is used the constitutional protections and statutory procedures are implicated and it is no longer an appropriate exercise of administrative search powers. An officer's reasonable mistake of law may not justify a search and seizure. United States v. Chanthasouxat, 342 F.3d 1271, 1276 - 1279 (11Cir. 2003). The good faith exception to the exclusionary rule does not extend to mistakes of law. Id at 1280. See also United States v. Coplin, 463 F.3d 96, 101 (1 Cir. 2006), United States v. McDonald, 453 F.3d 1271, 1277 - 80 (7th Cir. 2006). Therefore, even if the court were to find that an agent's misinterpretation of the law was done in "good faith" it does not save the evidence illegally seized or discovered in contravention of both State and Federal law.