       Third District Court of Appeal
                                State of Florida

                            Opinion filed June 10, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D15-913
                          Lower Tribunal No. 11-6237-A
                              ________________


                                Jorge Barahona,
                                     Petitioner,

                                         vs.

                         The State of Florida, et al.,
                                   Respondents.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Nushin
Sayfie, Judge.

      J. Rafael Rodriguez, for petitioner.

       Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third
District, and Philip L. Reizenstein, Assistant Regional Counsel, for respondents.


Before SALTER, FERNANDEZ and SCALES, JJ.

      SALTER, J.
        Jorge Barahona petitions for a writ of prohibition or certiorari1 to preclude

the review of his medical records in camera. His co-defendant/wife, Carmen

Barahona, requested the records in pretrial discovery. Jorge and Carmen Barahona

were indicted for the first-degree murder of one of their adoptive children, N.B.;

multiple counts of aggravated battery upon N.B.; additional counts of aggravated

battery upon another adoptive child, N.B.’s twin brother, V.B.; charges of child

abuse and neglect relating to both children; and a charge of mutilating or grossly

abusing N.B.’s body after her death. The State is seeking the death penalty against

both Jorge and Carmen Barahona.2

        Carmen Barahona filed a pretrial motion for the issuance of a subpoena

duces tecum seeking medical records (including psychological and psychiatric

records) from a local hospital pertaining to Jorge Barahona. She maintained that

the records were necessary and relevant to her defense, and she asked the trial

court to review the records in camera. The court held two hearings on the motion.

Following the first hearing, the court directed Carmen Barahona to amend her

motion to demonstrate good cause for an in camera review, as a precondition to




1  “Certiorari is the appropriate vehicle to review an interlocutory order requiring
the production of confidential medical records.” Tyson v. State, 114 So. 3d 443,
444-45 (Fla. 5th DCA 2013).
2   The parties agreed that their cases would be severed for trial.

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assessing the alleged relevance of any documents that might be responsive to the

subpoena.

      Carmen Barahona then filed a supplement to her motion for the subpoena to

address her “good faith” request for Jorge Barahona’s medical records. Although

she described statements by Jorge Barahona to the police that he was hospitalized

twice because the child victims were poisoning him, purportedly corroborated by

V.B. (describing Jorge Barahona’s claim that the children were trying to poison

Jorge by putting rat poison on the baseboard and baby oil in his two-liter bottle of a

soft drink), neither the supplement nor the original motion links Jorge Barahona’s

medical records as sought from the hospital to any defense to any charge against

Carmen Barahona.

      At the close of the second hearing on the motion for the subpoena, the trial

court ruled that Carmen Barahona had shown a need for the in camera review of

the medical records by the court, as they might contain information “that [Carmen

Barahona] may be able to utilize in nudging forth their defense, or their

mitigation . . . it could be either.” The trial court stayed the effectiveness of the

order in order to permit Jorge Barahona to seek relief in this Court.

      Analysis

      Mr. Barahona’s petition asserts that: the medical records are privileged

under the physician-patient privilege (citing Acosta v. Richter, 671 So. 2d 149



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(Fla. 1996)); there is no proffered, specific nexus between his own medical records

and Ms. Barahona’s defense; there is a valid concern that any such records made

available to Ms. Barahona will in turn be provided by her to the State by virtue of

the reciprocal discovery in effect in the case under Florida Rule of Criminal

Procedure 3.220(d)(1)(B) (see State v. Boggess, 698 So. 2d 942 (Fla. 3d DCA

1997)); he may be prejudiced because of the trial court’s review of such records

and subsequent role in the sentencing phase of the case; and disclosure is

prohibited by the Health Insurance Portability and Accountability Act (“HIPAA”)3

and its privacy rule.4

        In her response,5 Ms. Barahona argues that the subpoena was required to

permit her to “obtain information to explore possible defenses,” and that the

“specifics as to the relevancy of the medical records are detailed” in her

supplement to the motion for the subpoena filed after the first hearing on the

matter. She also asserts these reasons for seeking the records:


3   42 U.S.C. §§ 1320d-1320d-9 (2014).
4   45 C.F.R. §§ 164.102 - .106 (2015).
5  The State has also filed a response, but has taken no position relating to Mr.
Barahona’s medical records on the state of the current record. The State has
requested that any remedy crafted by this Court “be narrow and not prejudice any
discovery rights the State might have in the case as it proceeds in the trial court.”
We confirm that this opinion is limited in scope and confined to the existing
record. The State has also asserted its entitlement to the medical records, if
produced to Ms. Barahona, as a matter of reciprocal discovery.

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               Prior to the death of N.B., Jorge Barahona was hospitalized
        twice and the medical records sought would confirm the
        hospitalization and might contain additional information regarding
        Jorge Barahona’s beliefs about N.B. and V.B. attempting to poison
        him. Carmen Barahona is charged in multiple counts in the indictment
        with aggravated child abuse and aggravated battery upon a child by
        locking V.B and N.B in a bathroom. The proof that Jorge Barahona
        believed his children were trying to poison him, and that he told this
        to his wife-who is now his co-defendant- could form the basis for a
        defense to those charges. . . .

        ....

               Jorge Barahona claimed in his statement to the detectives that
        he was hospitalized as a result of his children trying to poison him.
        Jorge Barahona made N.B. and V.B sleep in the bathtub. He had
        various explanations for this. He also taped their wrists. Carmen
        Barahona was present in the home during this time period. She is
        charged with multiple acts of child abuse. Her knowledge of Jorge
        Barahona’s claims that their children were trying to poison him is
        directly relevant to a possible defense to the child abuse charges. If
        Jorge Barahona was telling Carmen Barahona that their children were
        trying to poison him and Carmen Barahona was complicit in taping
        the hands of N.B and V.B and putting them in the bathtub to sleep,
        then the medical records of Jorge Barahona would explain her actions.

(Record references omitted).

        Ms. Barahona also argues in her response—persuasively and correctly—that

HIPAA’s privacy rule and counterpart Florida laws6 do not preclude the

production of otherwise-private personal medical records when a judicial officer

orders them to be produced. Ms. Barahona does not, however, address the strong,

and in this case controlling, protection afforded to personal medical records by the


6   §§ 395.3025(4) and 456.057, Fla. Stat. (2014).

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right to privacy in Article I, section 23, of the Florida Constitution, and the

physician-patient privilege codified in section 456.057, Florida Statutes (2014). A

patient’s constitutional right to the privacy of such records must yield to a duly

issued subpoena in a criminal prosecution “when there is a clear connection

between illegal activity and the person whose privacy has allegedly been invaded.”

State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). In the present case, however,

there is no such “clear connection.” Here, as in Tyson v. State, 114 So. 3d 443

(Fla. 5th DCA 2013), the movant has not met its burden to demonstrate the

relevancy of the records requested. Ms. Barahona has not alleged, much less

demonstrated, how any of Mr. Barahona’s hospital records would relate to the

separate case against her (as opposed to the case against Mr. Barahona) and her

prospective defenses. To this point, Carmen Barahona has not asserted that she

had any knowledge—whether from her husband, the child victims, or otherwise—

that Jorge Barahona was claiming that the children were poisoning him, at any

time before or during the incidents detailed in the indictment.

      The order compelling disclosure of the petitioner’s personal medical records

under these circumstances constitutes a departure from the essential requirements

of the law that would cause irreparable harm for which Jorge Barahona has no

adequate remedy on appeal. Id. at 445 (citing Ireland v. Francis, 945 So. 2d 524

(Fla. 2d DCA 2006)).



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Petition granted; order quashed.




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