       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 13, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1668
                       Lower Tribunal No. 11-1016-A-K
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                             Samuel Strickling,
                                    Appellee.



     An Appeal from the Circuit Court for Monroe County, Mark Jones, Judge.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellant.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant
Public Defender, and Yosue Ochoa and Levi Lawrence Wilkes, Certified Legal
Interns, for appellee.


Before WELLS, ROTHENBERG and EMAS, JJ.

     WELLS, Judge.


                                        1
      The State of Florida appeals from an order granting Samuel Strickling’s

motion to suppress the testimony of two of his treating physicians as well as those

physicians’ medical records in this “doctor shopping” case. See § 893.13(7)(a)8,

Fla. Stat. (2011).1 We reverse that part of the order precluding all testimony from

one of the physicians, Dr. Shapiro, but affirm as to that part of the order precluding

the testimony of the second physician, Dr. McKnight, and excluding the medical

records of both physicians.

      The facts are as follows.

      On November 22, 2011, Key West Police Officers Malgrat and Medina

responded to a telephone call from a physician at the Truman Medical Center in

reference to a report of “doctor shopping.” Upon arrival, the officers were met by
1 This provision makes it unlawful to attempt to secure either a controlled

substance or a prescription for such a substance from a practitioner without
informing that practitioner that the requester has received a controlled substance or
prescription for same from another practitioner within the last thirty days:

      (7)(a) A person may not:

      ....

      8. Withhold information from a practitioner from whom the person
      seeks to obtain a controlled substance or a prescription for a
      controlled substance that the person making the request has received a
      controlled substance or a prescription for a controlled substance of
      like therapeutic use from another practitioner within the previous 30
      days.

§ 893.13(7)(a)8, Fla. Stat. (2011).



                                          2
Dr. Shapiro who told them that Samuel Strickling, who then was in the waiting

room, had secured a prescription for a controlled substance the day before from Dr.

McKnight, another doctor at the medical center, and was now seeking another

prescription from Dr. Shapiro. Dr. Shapiro then provided the officers with a copy

of the physicians’ records relating to Strickling.

      After speaking with Dr. Shapiro, the officers also spoke with Dr. McKnight,

the physician who had written a prescription for Strickling the day before. During

that conversation, Dr. McKnight advised the officers that had he known that

Strickling had secured prescriptions from other physicians, he would not have

written a prescription for him. Dr. McKnight then completed a sworn statement.

Strickling was arrested and subsequently charged with violating section

893.13(7)(a)8 of the Florida Statutes.

      Approximately four months after being charged, and after making a number

of unsuccessful attempts to notify Strickling of its intent to request a subpoena to

secure his medical records, the State finally notified Strickling of its intention to

secure a subpoena for his medical records. See § 456.057(7)(a)3, Fla. Stat. (2011)

(authorizing the release of medical records “upon the issuance of a subpoena from

a court of competent jurisdiction and proper notice to the patient or the patient’s

legal representative by the party seeking such records”). A subpoena was issued.

Strickling thereafter moved to “suppress” not only the medical records initially


                                           3
provided to the police, but also the records later obtained pursuant to subpoena. At

the hearing which followed, he also sought to preclude both physicians from

testifying.

       In his motion, Strickling argued that the doctors had no authority to provide

his medical information to the police and that the State had failed to act in good

faith in securing that information. The trial court, concluding that this matter was

controlled by the decisions in Mullis v. State, 79 So. 3d 747 (Fla. 2d DCA 2011),

and State v. Sun, 82 so. 3d 866 (Fla. 4th DCA 2011), agreed and suppressed all

statements and the medical records secured by the State and precluded the State

from calling either physician as a witness. With the exception of the State’s ability

to call Dr. Shapiro as a witness, we affirm the order entered below.

                  The Confidential Status of a Patient’s Medical Records

    In 1988, the legislature amended the predecessor to section 456.057 of the

Florida Statutes to create a broad and express physician-patient privilege of

confidentiality in the medical records and medical condition of patients. Hasan v.

Garvar, 108 So. 3d 570, 575 (Fla. 2012); Acosta v. Richter, 671 So. 2d 149, 154

(Fla. 1996); see § 456.057(7)(a), Fla. Stat. (2011) (in part providing “[e]xcept as

otherwise provided in this section and in s. 440.13(4)(c), such records may not be

furnished to, and the medical condition of a patient may not be discussed with, any

person other than the patient or the patient’s legal representative or other health


                                           4
care practitioners and providers involved in the care or treatment of the patient,

except upon written authorization of the patient.”). The statute creating this

privilege, while not applicable in some medical negligence and administrative

proceedings,2 also details a scheme for the disclosure without patient consent of a

patient’s protected personal medical information in a few limited circumstances. 3

Hasan, 108 So. 3d at 567; see § 456.057 (7)(a)1-5.

2 Section 456.057(8) of the Florida Statutes excepts from section 456.057(7)
“medical negligence action[s] or administrative proceeding[s] when a health care
practitioner or provider is or reasonably expects to be named as a defendant.” §
456.057(8), Fla. Stat. (2011).
3   Section 456.057(7)(a), provides:

        However, such records may be furnished               without    written
        authorization under the following circumstances:

        1. To any person, firm, or corporation that has procured or furnished
        such examination or treatment with the patient's consent.

        2. When compulsory physical examination is made pursuant to Rule
        1.360, Florida Rules of Civil Procedure, in which case copies of the
        medical records shall be furnished to both the defendant and the
        plaintiff.

        3. In any 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 by the party seeking such records.

        4. For statistical and scientific research, provided the information is
        abstracted in such a way as to protect the identity of the patient or
        provided written permission is received from the patient or the
        patient's legal representative.


                                          5
    In Sun, the court addressed whether a police officer violated Sun’s

constitutional right to privacy and section 456.057 when he secured written

statements and patient contracts from Sun’s doctors without first securing Sun’s

authorization, a search warrant, or a subpoena as authorized by section

456.057(7)(a)3. Sun, 82 So. 3d at 870-871 (stating that “[t]he state constitutional

right to privacy protects medical records”) (citing State v. Johnson, 814 So. 2d 390,

393 (Fla. 2002) (“A patient’s medical records enjoy a confidential status by virtue

of the right to privacy contained in the Florida Constitution, and any attempt on the

part of the government to obtain such records must first meet constitutional

muster.”)). In Mullis, the court addressed whether a police officer violated Mullis’

constitutional right to of privacy when, following a tip from a fellow officer, he

acquired information over the phone from Mullis’ doctors without first securing

authorization from Mullis or a subpoena issued upon proper notice as required by

section 456.057(7)(a)3.

    In Sun, the Fourth District Court of Appeal suppressed the physical evidence—

written statements and patient contracts—secured in violation of section 456.057

(7). In Mullis, the Second District Court of Appeal suppressed oral statements


      5. To a regional poison control center for purposes of treating a poison
      episode under evaluation, case management of poison cases, or
      compliance with data collection and reporting requirements of s.
      395.1027 and the professional organization that certifies poison
      control centers in accordance with federal law.

                                          6
made to the officer over the telephone4 because, as that court later explained, while

section 456.057 does not bar members of the public from seeking medical

information about patients, that section does bar healthcare providers from

providing such information, and law enforcement officers are precluded from

pressuring healthcare providers into violating the statute:

       Section 456.056(7) does not prevent an ordinary citizen form
       exercising his or her First amendment right to call a doctor’s office
       seeking information about a patient. Instead, it bars the doctor’s
       office from giving out that information. Mullis, 79 So. 3d at 752-53,
       essentially concludes that law enforcement officers are not free to use
       their indicia of authority to pressure or cajole the staff at medical
       officers to violate this statute.

State v. Crumbley, 143 So. 3d 1059, 1067 (Fla. 2d DCA 2014).

                              a. Dr. Shapiro’s testimony

    In this case, the oral representations made by Dr. Shapiro about Strickling did

not derive, as did those in Sun and Mullis, from inquiries initiated by law

enforcement officers. Nor did the officers pressure or cajole Dr. Shapiro or his

staff to secure information. Rather, Dr. Shapiro initiated contact with the police

and then volunteered limited information to them when they responded to his

report of criminal activity. Moreover, and unlike the investigating officers in Sun

4Those statements were that: (1) Mullis was a patient; (2) the physicians at issue
had prescribed controlled substances to Mullis; (3) Mullis had not informed the
physicians that he had received a prescription for a controlled substance from
another provider within the last thirty days; and, (4) the physician at issue would
not have prescribed a controlled substance to Mullis had they known of the prior
prescriptions.

                                          7
and Mullis, the officers in this case had no information that would allow them to

secure either consent, a search warrant, or a section 456.057(7)(a)3 subpoena for

information about Strickling when they proceeded to Dr. Shapiro’s office to

investigate his call. On this record, we find no basis for excluding him as a

witness.

    We also find no support in the Fourth Amendment to suppress his testimony.

As Strickling conceded below, when Dr. Shapiro initiated contact with the police

and then told them that he believed that Strickling was doctor shopping, no state

action was involved so as to implicate the Fourth Amendment:

      Your Honor, I believe the State – the State would be accurate that
      there was no State actor had Dr. Shapiro just picked up the phone and
      called and said, hey, I think I have a guy who’s here, he’s doctor
      shopping, this is what I know. I think if it was just, this is what I
      know, it would have been a different story than we have here today.

See State v. Parker, 991 So. 2d 411, 415 (Fla. 3d DCA 2008) (stating “[i]n the

Fourth Amendment context, the exclusionary rule applies to evidence obtained by

illegal police or prosecutorial actions, regardless of whether the evidence obtained

is reliable or unreliable, because the purpose of the rule in the Fourth Amendment

context is to deter illegal state action. See[,] e.g., Illinois v. Krull, 480 U.S. 340,

353, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); United States v. Leon, 468 U.S. 897,

916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Stone v. Powell, 428 U.S. 465, 486,

96 S.Ce. 3037, 49 L.Ed.2d 1067 (1976). However “[b]ecause the exclusionary rule


                                          8
in respect to Fourth Amendment violations is based upon the deterrence of illegal

police or prosecutorial action, it is not triggered by the actions of private

persons however egregious they may be.” State v. Pailon, 590 A. 2d 858, 861

(R.I. 1991) (emphasis added) (citing United States v. Jacobsen, 466 U.S. 109, 104

S.Ct. 1652, 80 L.Ed.2d 85 (1984); Walter v. United States, 447 U.S. 649, 100 S.Ct.

2395, 65 L.Ed.2d 410 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574,

65 L.Ed. 1048 (1921). Thus, in the Fourth Amendment context, the exclusionary

rule only applies to state action.”).

   We also agree with our sister court’s assessment that information such as that

provided by Dr. Shapiro is merely “investigatory material that probably never

would have been admissible at trial,” and would not support excluding this witness

in any event. Crumbley, 143 So. 3d at 1067; see generally 42 U.S.C.A. § 1320d

(the federal Health Insurance Portability and Accountability Act of 1966

(HIPAA)); 45 C.F.R. § 160.103; 45 C.F.R. § 164.512(f)(2) (providing that “a

covered entity may disclose protected health information in response to a law

enforcement official’s request for such information for the purpose of identifying

or locating a suspect . . . provided that . . . [t]he covered entity . . . disclos[es] only”

the name and address; date and place of birth; social security number; ABO blood

type and rh factor; type of injury; date and time of treatment; date and time of


                                             9
death, if applicable; and a description of distinguishing physical characteristics

including height, weight, gender, race, hair and eye color, presence or absence of

facial hair, scars, and tattoos).

      Dr. Shapiro should not, therefore, have been precluded from being subpoenaed

to testify. 5, 6

                                     b. Dr. McKnight




5   In State v. Carter, 23 So. 3d 798, 801 (Fla. 1st DCA 2009), the court observed:

         Even where evidence is disclosed by a covered entity in violation of
         HIPAA standards, suppression of the records is not provided for by
         HIPAA and is thus not a proper remedy. State v. Mubita, 145 Idaho
         925, 188 P. 3d 867, 878 (2008); State v. Straehler, 307 Wis.2d 360,
         745 N.W. 2d 431 (2007). Fines and imprisonment, not suppression of
         evidence, are the remedies expressed in the Act for violations of the
         disclosure standards by a covered entity. 42 U.S.C. §§ 1320d–5,
         1320d–6. Exclusion of evidence is proper only where the statute
         violated provides for such exclusion, or where a constitutional
         violation has occurred. See generally Jenkins v. State, 978 So. 2d 116
         (Fla. 2008). As stated in U.S. v. Zamora, 408 F. Supp.2d 295, 298
         (S.D. Tex. 2006), “HIPAA was passed to ensure an individual’s right
         to privacy over medical records, it was not intended to be a means for
         evading prosecution in criminal proceedings.” See also State v.
         Eichhorst, 879 N.E. 2d 1144 (Ind. Ct. App. 2008); State v. Yenzer, 40
         Kan. App.2d 710, 195 P. 3d 271 (2008).
6 This determination does not prevent the court below from precluding or
excluding portions of Dr. Shapiro’s testimony which might otherwise violate these
provisions or be inadmissible. See generally J.B.J. v. State, 17 So. 3d 312,
318 (Fla. 1st DCA 2009) (“Prior consistent statements are generally inadmissible
to corroborate or bolster a witness’s trial testimony because such statements are
usually hearsay.”).

                                           10
   We come to a different conclusion with regard to Dr. McKnight. While the

State argued against suppression of Dr. Shapiro’s testimony and the medical

records belonging to him that were turned over to the officers, it conceded from the

start of the hearing on Strickling’s motion to suppress, that suppression of Dr.

McKnight’s verbal and written statements was appropriate:

      It’s a little bit of a different factual scenario [as to Dr. McKnight], so
      we do recognize at least as to that, that statement, verbal and written
      would, fall under any guidelines for obtaining medical records
      information, and we do concede that that information should be
      suppressed.

   Once Dr. Shapiro identified Dr. McKnight as having information about

Strickling’s treatment and prescription drug use, it was incumbent on the

authorities either to secure Strickling’s consent to allow Dr. McKnight to provide a

statement and documents or put Strickling on notice and secure a subpoena to

obtain information, either verbal or written, from Dr. McKnight. See Sun, 82 So.

3d at 866 (suppressing written statements and patient contracts procured in

violation of section 456.057). The failure to do so requires that he be precluded

from testifying in this matter.

                c. Dr. Shapiro’s and Dr. McKnight’s Medical Records

   We also agree that the medical records provided by Dr. Shapiro, which were

comprised of both his and Dr. McKnight’s records, were properly suppressed.

Once the officers arrived at the medical clinic and Dr. Shapiro identified Strickling


                                         11
and voiced his concerns, it was incumbent on the officers to either secure

authorization from Strickling or to give notice and secure a subpoena to secure his

medical records. Even the exigent circumstances of a suspected crime in progress

did not necessitate the handing over of Strickling’s medical file at that moment.

And, while confidential medical records need not be excluded from use “any time

the State fail[s] to comply with the statute,” such records should be excluded when

“the State [fails to make] a good faith effort to comply with the statute:

      An important consideration in this case is the State’s repeated
      attempts to meet the statutory requirements, and the fact that some of
      the effort was misdirected is not dispositive and should not result in a
      per se rule that prohibits future compliance. Accordingly, we quash
      the Second District’s decision in Johnson, and disapprove of the
      opinion in Rutherford, to the extent that it would apply the
      exclusionary rule any time the State failed to comply with the statute,
      without regard to whether the State made a good faith effort to comply
      with the statute. However, we also disapprove of Manney to the
      extent that the Fifth District would never preclude the State from
      using the medical records, so long as the State subsequently complies
      with section 395.3025 by establishing reasonable suspicion through
      the introduction of facts that are independent of the records
      themselves.

Johnson, 814 So. 2d at 394.

    In this case, the authorities made no effort to secure either consent or a

subpoena until long after Dr. Shapiro handed over Strickling’s medical records and

long after Strickling was arrested and charged. Under the circumstances we can

neither agree with the State that it acted in good faith nor disagree with the trial

court’s determination that it failed to so act. The medical records secured from Dr.

                                          12
Shapiro, comprised of both his and Dr. McKnight’s records, were properly

suppressed.

   We therefore affirm the trial court’s order excluding the testimony of Dr.

McKnight and the medical records turned over to authorities by Dr. Shapiro.

However, we reverse that portion of the order excluding all testimony from Dr.

Shapiro.

  Affirmed in part, reversed in part, and remanded.




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