Limbaugh v. Florida: medical file privacy (no)

From: Sufaud (sufaud_at_hotmail.com)
Date: 10/07/04 

Date: Thu, 07 Oct 2004 07:12:47 +0100

2004 Fla. App. LEXIS 14653,*

RUSH LIMBAUGH, Petitioner, v. STATE OF FLORIDA, Respondent.

CASE NO. 4D03-4973

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

2004 Fla. App. LEXIS 14653

October 6, 2004, Opinion Filed

NOTICE:    [*1]  NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION
FOR REHEARING.

PRIOR HISTORY:   Petition for writ of certiorari to the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey A. Winikoff,
Judge; L.T. Case No. 502003CA013316XXOCAN.

COUNSEL:   Roy Black, Jackie Perczek and Christine Ng of Black, Srebnick,
Kornspan & Stumpf, P.A., Miami, for petitioner.
 
Barry Krischer, State Attorney for the Fifteenth Circuit, and James L.
Martz, Assistant State Attorney, West Palm Beach, for respondent.
 
Mary E. Baluss, Washington, D.C., and Brian A. Kahan of Kahan & Associates,
P.L., Boca Raton, for Amici Curiae, National Foundation for the Treatment of
Pain, and Florida Pain Initiative.
 
Jon May of May & Cohen, P.A., Fort Lauderdale, Randall C. Marshall of ACLU
Foundation of Florida, Inc., Miami, Professor Michael Masinter, Nova
Southeastern University, Fort Lauderdale, and Robert C. Buschel of Buschel,
Carter, Schwartzreich & Yates, Fort Lauderdale, Amicus Curiae, American
Civil Liberties Union of Florida, Inc.
 
Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre &
Gregoire, P.A., Fort Lauderdale, and Andrew Schlafly, AAPS General Counsel,
New York, New York,  [*2]  for Amicus Curiae, The Association of American
Physicians & Surgeons, Inc.

JUDGES:   FARMER, C.J. TAYLOR, J., concurs. MAY, J., concurs in part and
dissents in part with opinion.

OPINIONBY:   FARMER

OPINION:   FARMER, C.J.

In this petition for certiorari, we are asked to decide whether the
authority of the State to seize medical records in a criminal investigation
by search warrant is limited by a patient's right of privacy. We conclude
that the State's authority to seize such records by a validly issued search
warrant is not affected by any right of privacy in such records.

The background may be briefly sketched. Police received statements from two
individuals that they had sold petitioner "large quantities" of Hydrocodone
and Oxycontin "over the course of many years." Acting on this information,
police obtained a list of petitioner's prescriptions from a local pharmacy.
These records are described as showing that petitioner had obtained
prescriptions for controlled substances from four different physicians
within a five-month period. Police then began investigating whether
petitioner should be charged with violating the "doctor shopping" statute.
n1

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n1 See § 893.13(7)(a)8, Fla. Stat. (2003) ("It is unlawful for any person
... to 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." [e.s.]).
 

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 Police prepared an affidavit and obtained search warrants. See § 933.07(1),
Fla. Stat. (2003). The warrants described the items to be seized as:

"Records specifically and only pertaining to [petitioner] including the
medical records, medical questionnaire, cash receipts, sections of
appointment book pertaining to [petitioner], canceled checks, medical
insurance forms submitted or prepared to be submitted to insurance
companies, computerized records related to the ordering of narcotics, DEA
prescriptions numbers and forms, records of dispersing or issuing
prescriptions for controlled substances, written and or computerized
pertaining only to [petitioner]."In keeping with the actual text of the
warrant application, we read the warrants as seeking only those medical
records "related to the ordering of narcotics, DEA prescriptions numbers and
forms, records of dispersing or issuing prescriptions for controlled
substances, written and or computerized pertaining only to [petitioner]." A
Judge issued the warrants after review of the affidavit. These warrants were
directed to the offices of three physicians and a clinic (providers) from
which  [*4]  petitioner had received medical care and services, including
prescriptions.

According to petitioner, in producing the records none of the providers made
any distinction as to which of their records pertained to prescriptions and
which did not. In response to the warrants, all of the providers simply
turned over to the police all of petitioner's medical records in their
possession.

After police received the records, they placed them under seal, and the
State Attorney sent the following notice to petitioner:

"The State is presently investigating a possible violation of Florida State
Statute 893.13 against your client [petitioner]. Pursuant to Florida State
Statute 395.3025(4)(d) and F.S.S. 933, the State has seized thru a lawfully
obtained search warrant the medical records and/or files of your client...
This was done November 25, 2003.

"This letter will serve as notice to you, as council [sic] for [petitioner]
that 10 days from the date of the same, the State will move to unseal those
medical records and/or files which were seized on November 25, 2003, and
sealed without viewing any of the contents in the presence of the
administrator or doctor pending your opportunity  [*5]  to be heard on
your clients right [sic] privacy issues, in reference to the ongoing
investigation.

"This letter constitutes proper notice as contemplated by Florida State
Statute 395.3025(4)(d).

"Any legal objection to this action must be submitted in writing to the
undersigned prior to the expiration of the ten day period."Petitioner's
attorney responded by invoking all of his rights. He objected to the seizure
and any review of the medical records. He specifically referred to a claimed
right of privacy in personal medical affairs. Although no criminal charges
had yet been filed against petitioner, he demanded that the matter be set
for hearing before a Judge.

Petitioner then filed a petition for certiorari in the circuit court,
praying that the court quash the search warrants and bar the State from
again seizing his medical records on account of what he described as bad
faith in seeking the warrants without prior notice to him. Ultimately a
hearing was held before a Circuit Judge. Although the Judge received
extensive oral argument from petitioner's counsel, he refused to accept
evidence and also denied a request for leave to file a written memorandum
after the hearing.  [*6]  The court denied all relief. Petitioner then
filed an appeal to this court, which we have treated as a petition for
certiorari to review the decision of the circuit court.

Because the circuit court's jurisdiction of this case arose from a petition
for certiorari, and our review here has been based not by appeal of right
but only by certiorari, we briefly explain our jurisdiction. In this kind of
second tier review, our jurisdiction is quite limited. See Combs v. State,
436 So. 2d 93 (Fla. 1983) (in second tier review, district courts should not
be as concerned with mere existence of legal error as much as with
seriousness of error and should be allowed a large degree of discretion so
that they may judge each case individually); Haines City Community Dev. v.
Heggs, 658 So. 2d 523 (Fla. 1995) (standard of review for certiorari in
district court in reviewing order of circuit court acting in its review
capacity is whether circuit court afforded procedural due process and
whether circuit court applied correct law, which is synonymous with
observing essential requirements of law); Ivey v. Allstate Ins. Co., 774 So.
2d 679 (Fla. 2000) (cautioning  [*7]  district courts to be prudent and
deliberate when deciding to exercise second tier review, but not so wary as
to deprive litigants and the public of essential justice).

Petitioner contends that his constitutional right of privacy has been
violated as a result of the issuance of the search warrants without any
prior notice to him and an adversarial hearing to determine whether such
warrants should have been issued. He argues that unless this court reviews
the decision, his right of privacy will be lost without any appellate court
ever considering the matter until the damage had long since been done. Owing
to the nature of the right asserted, and the absence of any pending case
against petitioner in which he might raise the issue, we deem the nature and
context of the right asserted important enough to exercise our discretion in
favor of review at this point. We deem it necessary to consider the
underlying issue, namely whether Florida law recognizes a right of privacy
in medical records that would limit the State's use of search warrants in
regard to medical records in a criminal investigation.

Petitioner's primary argument is that this court should recognize a general
rule that  [*8]  the State may not use search warrants to avoid a
constitutional right of privacy in medical records. He asks us to hold that
search warrants for medical records are subject to a right of privacy in the
Florida Constitution. The provision he relies on says that "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." Art. I,
§ 23, Fla. Const. (1980) (privacy amendment).

>From its general text, one might have thought that article I, section 23,
did have the effect of restricting the government's power to seize personal
medical records, even under the separate constitutional article relating to
searches and seizures. See Art. I, § 12, Fla. Const. ("The right of the
people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures, and against the unreasonable
interception of private communications by any means, shall not be violated.
No warrant shall be issued except upon probable cause, supported by
affidavit, particularly describing the place or places to be searched, the
... things to be seized ... and the nature of evidence to be  [*9] 
obtained."). Because article I, section 23, lacks any stated authority to
seize personal medical records merely because they are relevant, one might
have supposed they would be immune even from search warrants. n2 Moreover,
because the United States Constitution has been interpreted to exclude any
right of privacy in search and seizure cases under the Fourth Amendment, n3
one might also suppose that the addition of a separate right of privacy to
the Florida Constitution inaugurated specific privacy protection as to
issues arising under article I, section 12. n4 These intuitions are not the
law, however.

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n2 Cf. John Sanchez, Constitutional Privacy in Florida: Between the Idea and
the Reality Falls the Shadow, 18 NOVA L. REV. 775 (1994) (arguing that
Florida courts have given article I, section 23, only grudging effect);
Rasmussen v. S. Fla. Blood Serv. Inc., 500 So. 2d 533 (Fla. 1987) (privacy
interests of blood donors defeated AIDS victim's claim to subpoena names and
addresses of blood donors who may have contributed the tainted blood);
Atwell v. Sacred Heart Hosp., 520 So. 2d 30 (Fla. 1988) (natural child who
was not formally adopted by family that raised him entitled to access to
hospital record of his birth even though name of birth mother therein
revealed).  [*10] 

n3 See U.S. Const., Amend. iv ("The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized."); Katz v. United States, 389 U.S. 347, 350-51, 19 L. Ed. 2d 576
(1967) ("The Fourth Amendment cannot be translated into a general
constitutional 'right to privacy.' That Amendment protects individual
privacy against certain kinds of governmental intrusion, but its protections
go further, and often have nothing to do with privacy at all. Other
provisions of the Constitution protect personal privacy from other forms of
governmental invasion. But the protection of a person's general right to
privacy -- his right to be let alone by other people -- is, like the
protection of his property and of his very life, left largely to the law of
the individual States.").

n4 In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989) ("Since the people of
this state exercised their prerogative and enacted an amendment to the
Florida Constitution which expressly and succinctly provides for a strong
right of privacy not found in the United States Constitution, it can only be
concluded that the right is much broader in scope than that of the Federal
Constitution.").
 
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In 1982, the voters of Florida amended article I, section 12, on searches
and seizures to conform its interpretation to the United States Supreme
Court's construction of the comparable provision in the Fourth Amendment. n5
This "conformity amendment" had been proposed by the Florida Legislature to
reverse the Florida Supreme Court's construction of article I, section 12,
which among other things had refused to recognize a good faith exception to
the warrant requirement that the United States Supreme Court had found in
the Fourth Amendment. n6

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n5 See Art. I, § 12, Fla. Const. (1982) (adding the following: "This right
shall be construed in conformity with the 4th Amendment to the United States
Constitution, as interpreted by the United States Supreme Court.").

n6 See House Joint Resolution No. 31-H (June 24, 1982).
 

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Since then the Florida Supreme Court has made clear that, as a result of the
conformity amendment, the right of privacy in article I, section 23, has no
application to searches and  [*12]  seizures complying with article I,
section 12. In State v. Hume, 512 So. 2d 185 (Fla. 1987), the court said:

"right-of-privacy provision, article I, section 23, of the Florida
Constitution, does not modify the applicability of article I, section 12,
particularly since the people adopted section 23 prior to the present
section 12."512 So. 2d at 188. One year later, the court said that it had
"rejected the contention that our right-of-privacy provision under article
I, section 23, of the Florida Constitution prohibited the introduction of
[defendant's conversation in his home with an undercover police officer]."
Madsen v. State, 521 So. 2d 110, 110 (Fla. 1988). In State v. Hester, 618
So. 2d 1365 (Fla. 1993), the court restated that "our right of privacy
provision, article I, section 23, does not modify the applicability of
article I, section 12, particularly since section 23 was adopted prior to
the present section 12." 618 So. 2d at 1366; see also State v. Jimeno, 588
So. 2d 233 (Fla. 1991) (same). Because the privacy amendment came before the
conformity amendment, the privacy  [*13]  amendment does not apply to cases
to which article I, section 12, is applicable. Logically, therefore, any
statutes enacted after the adoption of the conformity amendment could have
no different application in the context of search and seizure than article
I, section 23, itself does.

Nevertheless, petitioner reads a right of privacy restriction into the
State's power to seize medical records by search warrant. He implicitly
acknowledges that search warrants are designed to seize relevant evidence
upon a showing of probable cause under article I, section 12.
Notwithstanding that recognition, however, he concludes that search warrants
are not sufficient to protect his privacy interests in items protected by
the constitution.

Petitioner also relies on Florida's medical records subpoena statutes in
arguing that he was entitled to notice and a hearing before the State could
seize and review his medical records. n7 One statute, found in chapter 395,
deals with the regulation of hospitals. The other, found in chapter 456,
generally regulates all health care providers other than hospitals. Both
statutes were originally passed at the same time in a different form. See
Ch. 83-108, Laws  [*14]  of Fla. (introducing notice requirement for
issuance of subpoenas for medical records). It is important to note that the
Legislature enacted these statutes one year after the conformity amendment
was adopted.

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n7 See § 395.3025(4)(d), Fla. Stat. (2003) ("Patient records are
confidential and must not be disclosed without the consent of the person to
whom they pertain, but appropriate disclosure may be made without such
consent to . . . 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 by the party seeking such records to the
patient or his or her legal representative."); § 456.057(5)(a)3, Fla. Stat.
(2003) ("Except 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 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 . . . 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."). [hereinafter referred to as subpoena statutes]
 
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Although these are separate statutes, their text is identical in substance.
First, they require health care providers to recognize a right of privacy in
medical records. Second, they establish that outsiders may not subpoena such
records from medical providers without prior notice to the patient. It is
true that the subpoena provision is a subdivision of the two statutes and
that they are not labeled as subpoena statutes. We also recognize that the
primary thrust of these two statutes is to require health care providers to
recognize their patient's right of privacy in the records they create and
maintain. Yet, for purposes of this case, the operative effect of the
statutes really lies only in the subdivisions limiting the use of subpoenas
for medical records. n8

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n8 And so, when we refer to the medical records subpoena statutes, or just
the subpoena statutes, we refer only to the subdivisions dealing with
subpoenas of medical records.
 
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We do not believe the Legislature's purpose in enacting these subpoena
statutes  [*16]  had anything to do with search warrants, a term that
appears nowhere within either of them. Their rather limited purpose was to
correct a practice in the use of subpoenas for medical records in both civil
and criminal cases by private and governmental lawyers. Before these
statutes were adopted, subpoenas for discovery and trial were readily
obtainable by any attorney without judicial supervision. The attorney could
serve a subpoena without any prior notice or permission. Usually the records
were not in the possession of the patient, who might not even be a formal
party in the case. Private medical records of this kind are usually kept by
third party providers of medical services. Under this old procedure,
attorneys could obtain subpoenas merely by asking the Clerk for them. In
fact, attorneys could (and did) carry subpoenas around in their briefcases,
issued in blank by the Clerk for this purpose. This practice was in
wide-spread use. These statutes were apparently intended only to alter this
former use of subpoenas where medical records are concerned. Since their
enactment, the Legislature has amended them several times, but not in any
way material to the issue we face today. It  [*17]  should be carefully
noted that these subpoena statutes were adopted one year after the people of
Florida adopted the conformity amendment to our State Constitution.

Because this case involves search warrants, not subpoenas, the issue really
turns on the content of the search warrant statutes. n9 Nothing in any
statute purports to limit the use of search warrants in regard to medical
records. Section 933.02(3) expresses no limitations as to the kind of
property that may be had by a search warrant. To the contrary, section
933.02(3)'s term any property self-evidently includes medical records
because of the absence of any limiting text. And the presence of one actual
limitation in subsection (2) of 933.07(1) demonstrates beyond any quibble
that when the Legislature proposes to restrict search warrants as to
specified property it will say so in the statute.

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n9 See § 933.07(1), Fla. Stat. (2003) (providing for issuance of search
warrants); § 933.02(3), Fla. Stat. (2003) ("Upon proper affidavits being
made, a search warrant may be issued ... when any property [e.s.]
constitutes evidence relevant to proving that a felony has been committed. .
. .").
 
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As we said, the statutes affirming a right of privacy in medical records
apply only to subpoenas. Therefore, we take the omission of any reference to
search warrants as a plain legislative decision that search warrants for
medical records are not affected by these provisions. See Dobbs v. Sea Isle
Hotel, 56 So. 2d 341, 342 (Fla. 1952) ("The legislature made one exception
to the precise language of the statute of limitations. We apprehend that had
the legislature intended to establish other exceptions it would have done so
clearly and unequivocally."). n10 In short, by their clear terms, neither of
the two subpoena statutes on which petitioner relies would seem to have any
application when the State proceeds by search warrant. Yet petitioner argues
that Judges should interpret them to have that effect.

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n10 See also State v. Tsavaris, 394 So. 2d 418, 426 (Fla.
1981)(distinguishing between search warrants and subpoenas and holding that
requirements of Fourth Amendment apply to subpoenas in criminal case only to
ensure that breadth of subpoena is reasonable).
 
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In construing statutes, Judges are not free to add or delete provisions from
plain statutory text. See McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla.
1998) (when the language of the statute is clear and unambiguous and conveys
a clear and definite meaning, there is no occasion for resorting to the
rules of statutory interpretation and construction; the statute must be
given its plain and obvious meaning). When engaged outside of the common
law, as here, Judges are not meant to be fixers of statutory omissions and
have no authority to fill statutory voids or enlarge the domain of statutes
already adopted. Holly v. Auld, 450 So. 2d 217 (Fla. 1984) (courts lack
power to construe clear statute to extend, modify, or limit, express terms
or reasonable and obvious implications; to do so would be abrogation of
legislative power). This means that Judges are not free to reconstruct
statutes dealing only with subpoenas and extend them to cover search
warrants as well.

The issuance of these search warrants was based on a finding by a Judge that
the medical records to be seized were relevant to the commission of a felony
being investigated by the State. § 933.02(3), Fla. Stat.  [*20]  (2003)
("Upon proper affidavits being made, a search warrant may be issued ...when
any property constitutes evidence relevant [e.s.] to proving that a felony
has been committed ...."). The State had the burden of satisfying the Judge
that there was probable cause that petitioner's medical records were
relevant to the commission of a crime as to which there was also some
evidence of his involvement. The State satisfied that burden because the
Judge signed the search warrant, and nothing we have been shown suggests any
error in that regard.

If these subpoena statutes were nevertheless somehow applicable to search
warrants, in one real sense they would be unnecessarily redundant. Except
for prior notice, the greater showing required by search warrants --
probable cause and relevancy -- exceeds that which these subpoena statutes
require. If a mere reasonable suspicion is constitutionally sufficient for
the State to seize medical records by subpoena, obviously the probable cause
necessary for the issuance of a search warrant affords even greater
protection. See State v. Rivers, 787 So. 2d 952 (Fla. 2d DCA 2001)
(constitutional right of privacy in medical records overcome  [*21]  by
State's showing of reasonable suspicion for issuance of investigative
subpoena).

Search warrants have generally not required prior notice because of the
understandable fear that the property's custodian might cause the evidence
to disappear if he knew the State was seeking to seize it in a criminal
investigation. Indeed, in State v. Viatical Services Inc., 741 So. 2d 560,
562-3 (Fla. 4th DCA 1999), Judge Warner noted the absence of any authority
for an adversary hearing before the issuance of a search warrant and
recognized that a criminal investigation might actually be impaired by such
a hearing. That is precisely the argument made by the State in this case in
using a search warrant rather than an investigative subpoena. Such decisions
are well within prosecutorial discretion, and no one here has made a
sufficient showing otherwise.

In deciding to employ search warrants, rather than subpoenas, to reach
petitioner's medical records, the State cast a wary eye on our decision in
Viatical. There, the State had obtained a search warrant to seize a viatical
settlement company's files in connection with a fraud investigation. Along
with business and financial  [*22]  records, the files contained the
confidential medical records of persons who were insured by life insurance
policies. Counsel for the company under investigation objected to the
issuance of a search warrant, asserting the right of privacy in the medical
records of the insureds, who were not targets of the investigation. The
trial court decided to hold an adversarial hearing prior to issuing the
warrant. In granting the State certiorari relief, we held that it was
improper to hold an adversarial hearing before the warrant could be issued,
saying:

"While we can find no authority for allowing an adversarial hearing prior to
the issuance of a search warrant, which hearing may severely compromise a
criminal investigation, we dismiss the writ for failure to show irreparable
harm. Nevertheless, despite our conclusion that the state has failed to show
irreparable harm in this case, holding an adversarial hearing prior to the
issuance of a search warrant is contrary to statute. See § 933.07, Fla.
Stat. (1997). Pre-seizure hearings are 'necessarily ex parte, since the
subject of the search cannot be tipped off to the application for a warrant
lest he destroy or  [*23]  remove evidence.' " [e.s., c.o.]741 So. 2d at
562-63.

Although the State read Viatical to support the issuance of warrants for
medical records without a pre-seizure hearing, it was apparently concerned
about language in Viatical that established certain procedures for
protecting the privacy interests in medical records post-seizure. In
Viatical, we directed the trial court on remand to "issue the warrant on
condition that the insured's medical records be sealed until a post-seizure
hearing may be held on the issue of the right to privacy." 741 So. 2d at
564.

In this case, and in an abundance of caution, the State followed the above
procedure described in Viatical. After seizing the records, it kept the
records sealed, then notified petitioner of the seizure and his opportunity
to be heard on the privacy issue before the seized records could be
unsealed. Though commendable, these steps were not required. In Viatical, we
stated that when there are privacy rights which merit protection, the court
must fashion a remedy to protect them. In that case, however, we were
concerned about protecting the privacy rights of innocent third  [*24] 
parties. Here, petitioner is the target of the criminal investigation, not a
third party not implicated in the crimes under investigation. The Judge who
reviewed the warrant application's supporting affidavits found probable
cause to believe that the medical records contained evidence of criminal
wrongdoing. In issuing the warrant, the Judge impliedly determined that the
privacy rights of petitioner were outweighed by the State's legitimate need
to secure the information in furtherance of its investigation and
prosecution of the suspected crimes. Thus, the circuit court was not
obligated to do anything further before allowing the State to review the
seized records.

Obviously, Viatical does not support a conclusion that the constitutional
right of privacy has any limitation on the use of search warrants for
medical records. To hold that it does would conflict with the supreme
court's holdings that the right of privacy provision has no application to
constitutionally valid search and seizure. To repeat what we have already
shown, the supreme court has made clear that the privacy amendment does not
"modify the applicability [e.s.] of article I, section 12." Hume, 512 So. 2d
at 188.  [*25]  This means that the applicability of article I, section
12, is not displaced or affected by the privacy amendment. The propriety of
a search warrant is measured by the requirements of article I, section 12,
not by article I, section 23. The supreme court's holdings in
Hume-Madsen-Hester make clear that the constitutional right of privacy does
not further restrict the State's powers of search and seizure in the
criminal context beyond those requirements imposed by article I, section 12,
and the Fourth Amendment. We know from the addition of the citrus canker
provision to section 933.07(2) that the Legislature is aware of its
authority to add burdens in obtaining search warrants. It needs repeating
that it simply has not done so for medical records. We therefore cannot
agree that article I, section 23, has any affect on the State's authority
over items properly seized by a valid search warrant, or that it requires
any further post-seizure hearing as to general relevancy.

Petitioner places heavy reliance on State v. Johnson, 814 So. 2d 390 (Fla.
2002), to support a privacy limitation on search warrants for medical
records. The precise issue the court  [*26]  faced there was whether the
exclusionary rule should bar the State from attempting to correct a failure
to give prior notice of the issuance of a subpoena to seize medical records.
The State did not proceed by search warrant in that case, as it has done
here. Indeed, as the court itself explained:

"The issues before us are whether the State can avoid the procedural
requirements of section 395.3025(4)(d) by use of its investigative subpoena
power, and if not, what sanction is to be imposed when the State does not
comply with these procedural requirements. Based on the clear language of
the statute, we hold that the state attorney's subpoena power under section
27.04, Florida Statutes (1997), cannot override the notice requirement of
section 395.3025(4)(d)." [e.s.]814 So. 2d at 393. There is not a single word
anywhere in the opinion suggesting or implying that the holding also applies
to search warrants. To extend this holding on the use of subpoenas to search
warrants would be, well, unwarranted.

Petitioner seems to suggest that the issuing Judge's determination of
probable cause, and of the relevancy of his medical records  [*27]  to the
crime being investigated, is somehow insufficient. He argues that before any
warrant could be issued we should require an adversarial hearing, with prior
notice to petitioner. We think the issuing Judge's determination is all that
is required under article I, section 12. Nothing in the constitution or
search warrant statutes requires a post-seizure hearing to reconsider the
relevancy or probable cause determinations made by the issuing Judge. This
would amount to a judicially created limitation on search warrants.

Although we are urged to engage in statutory construction to deduce some
unarticulated legislative purpose limiting warrants, the supreme court has
made clear that there must be a "hopeless inconsistency" between statutes
before the rules of construction -- such as in pari materia -- may be
employed to defeat the plain language of one in favor of the other. State v.
Parsons, 569 So. 2d 437 (Fla. 1990) ("There first must be a hopeless
inconsistency between the two statutes before rules of construction are
applied to defeat the express language of one of those statutes."); Starr
Tyme Inc. v. Cohen, 659 So. 2d 1064 (Fla. 1995) (same).  [*28]  In other
words, it is improper to resort to the canons of statutory construction when
the texts of different statutes are plain and unambiguous. See A.R. Douglass
Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (Fla. 1931) ("The
intention and meaning of the Legislature must primarily be determined from
the language of the statute itself and not from conjectures aliunde. When
the language of the statute is clear and unambiguous and conveys a clear and
definite meaning, there is no occasion for resorting to the rules of
statutory interpretation and construction; the statute must be given its
plain and obvious meaning."). This is simply another application of the
principle that Judges are not empowered to add or remove words or plain
meaning from statutes. Holly v. Auld, 450 So. 2d at 219 (not court's duty or
prerogative to modify or shade clearly expressed legislative intent in order
to uphold policy favored by the court).

Accordingly, we hold that the constitutional right of privacy in medical
records is not implicated by the State's seizure and review of medical
records under a valid search warrant without prior notice or hearing. We
 [*29]  therefore deny the writ. Our denial, however, is without prejudice
to petitioner to seek review by the issuing Judge to insure that all the
records produced fall within the scope of the warrants, n11 and to seek
other protective relief to prevent improper disclosures to third parties of
records irrelevant to this prosecution.

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n11 See § 933.14(1), Fla. Stat. (2003) (issuing Judge may order property
seized by warrant returned where the property delivered up is "not the same
as that described in the warrant").

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TAYLOR, J., concurs.
 
MAY, J., concurs in part and dissents in part with opinion.

CONCURBY:   MAY (In Part)

DISSENTBY:   MAY (In Part)

DISSENT:   MAY, J., concurring in part and dissenting in part.

I concur in that part of the majority's opinion holding the State may use a
search warrant to search for and seize a person's medical records. I dissent
from that part of the opinion that turns a blind eye to section 23, article
I of the Florida Constitution and the age-old protection afforded  [*30] 
those records.

While using eight pages to hold that section 23 provides no protection, the
majority ends the opinion with the following: "Our denial, however, is
without prejudice to petitioner to seek review by the issuing Judge to
insure that all the records produced fall within the scope of the warrants,
. . . and to seek other protective relief to prevent improper disclosures to
third parties of records irrelevant to this prosecution." Slip Op. at 8.
(Footnote omitted.) This is the very review sought by the petitioner in this
case, which is why I would grant the petition. The majority holds there is
no right to protection of one's medical records when a search warrant is
issued, yet fashions its own form of relief that I find evident in Florida's
Constitution and the statutes designed to protect a person's medical
records.

Unlike the majority, I see a distinction between the right to search and
seize medical records, which is controlled by article I, section 12 of the
Florida Constitution and "disclosure" of those records, which I believe is
controlled by section 23.

With regard to search and seizure, section 933.07(1), Florida Statutes
(2003), authorizes  [*31]  the search of property or persons described for
the purpose of bringing the property or person(s) before a magistrate or
other court. The statute does not distinguish among types of property. There
is no special exception for medical records.

When the legislature enacted sections 395.3025 and 456.057, Florida Statutes
(2003) to address the "disclosure" of medical records, it neither referenced
the warrant statute in them nor amended the warrant statute to reference the
medical records statutes.

However, in response to the citrus canker crisis in 2002, the legislature
amended the warrant statute to require the court to "conduct a court
proceeding prior to the issuance of such search warrant upon reasonable
notice" and to "receive, hear, and determine any objections by property
owners to the issuance of such search warrant." See § 933.07(2), Fla. Stat.
(2003). No similar requirement was added to the warrant statute with regard
to medical records.

Thus, I conclude, as does the majority, that search warrants may be used to
search and seize medical records, pursuant to section 12. Indeed, common
sense  [*32]  suggests that law enforcement would itself be handcuffed if
required to give notice to a person before lawfully "seizing" evidence.
However, the warrant statute simply does not address the issue of
"disclosure."

This is the point at which I no longer see "eye to eye" with the majority.
The special nature of the doctor-patient relationship dates back 2400 years
to the age of Hippocrates. From that point forward, medical records have
been the focus of constitutional, statutory, and regulatory protections.
See, e.g., Art. I, § 23, Fla. Const. See also §§ 395.3025 and 456.057, Fla.
Stat. (2003); Health Insurance Portability and Accountability Act [HIPPA],
42 U.S.C.A. § 210 et seq. (1996); 10 U.S.C.A. § 1102 (2004); 38 U.S.C.A. §
7332 (2004); 42 C.F.R. §§ 405.2138, 405.2139, 417.106, 417.486 (2004); Wanda
E. Wakefield, J.D., Annotation, Physician-Patient Privilege as Extending to
Patient's Medical or Hospital Records, 10 A.L.R. 4th 552 (1981).  [*33] 
Yet, the majority cannot see any constitutional or statutory basis to
provide a meaningful post-seizure hearing to insure that only those records
"relevant" to the criminal investigation are "disclosed."

Perhaps the first indication of the privacy interest in medical records is
found in the Hippocratic Oath. It provides in part: "What I may see or hear
in the course of the treatment or even outside of the treatment in regard to
the life of men, which on no account ought to be spread abroad, I will keep
to myself, holding such things shameful to be spoken about." See
Hippocrates, Physician's Oath, STEADMAN'S MEDICAL DICTIONARY 579 (22d ed.
1972).

Centuries later, the citizens of Florida would amend their constitution to
add section 23. It provides for the "right to be let alone and free from
governmental intrusion into the person's private life . . . ." Art. I., §
23, Fla. Const. And, while the majority points out that our supreme court
has held section 23 does not affect search and seizure under section 12, it
seemingly overlooks the court's recognition that medical records fall within
the right to privacy afforded by section 23. State v. Johnson, 814 So. 2d
390 (Fla. 2002).  [*34] 

Our legislature has consistently protected medical records. Most
significantly, sections 395.3025 and 456.057 specifically address the
"disclosure" of medical records. The majority suggests these statutes are
irrelevant to the issue before the Court because they were only intended to
relate to the issuance of subpoenas. Slip Op. at 6. I disagree.

I know the difference between a subpoena and a warrant. I also recognize the
protective mechanism devised by the legislature to prevent unwarranted
"disclosure" of medical records. See §§ 395.3025 and 456.057, Fla. Stat.
(2003). Our supreme court has clearly indicated the privacy interest in
medical records trumps the State's investigative subpoena powers. Johnson,
814 So. 2d 390. In doing so, the Court upheld the privacy interest in a
person's medical records and continued to afford meaning to section 23 of
the Florida Constitution in the face of the State's right to investigate
criminal activity. I would do the same here.

Our legislature continued to protect medical records in legislation to
address the over-prescription of drugs by a doctor. Those statutes provide
 [*35]  for a warrant to search the doctor's office, but patient's medical
records are obtainable only by consent or through a subpoena issued pursuant
to section 456.057. n12 See §§ 458.341 and 458.343, Fla. Stat. (2003).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n12 The majority acknowledges that these statutes were enacted subsequent to
the constitutional amendment to section 12. I take this as an indication
that the legislature still holds medical records in a privileged category of
their own.
 
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Perhaps the most recent reminder of the importance of a person's privacy
interest in medical records can be found in Congress's amendments to HIPPA.
See Health Insurance Portability and Accountability Act [HIPPA], 42 U.S.C.A.
§ 210 et seq. (1996). The amendments further demonstrate the trend to
enhance, not eliminate, the privacy afforded to patients and their medical
records.

In State v. Viatical Services, Inc., 741 So. 2d 560 (Fla. 4th DCA 1999),
this  [*36]  court reviewed the privacy interest in medical records in the
context of a search warrant. This court was asked to balance the same
competing interests present in this case. We held the trial court "should
have limited the seizure by allowing the records to be sealed, rather than
precluding seizure of what it found probable cause to believe would contain
evidence of criminal wrongdoing." Id. at 564. We directed the trial court
"to issue the warrant on condition that the insured's medical records be
sealed until a post-seizure hearing may be held on the issue of the right of
privacy." Id.

According to the majority, Viatical does not support a conclusion that the
constitutional right of privacy has any limitation on the use of search
warrants for medical records. Slip Op. at 7. I agree. What Viatical does
support, however, is that medical records are protected. They should be
afforded that protection by the process outlined in Viatical. n13 The common
thread woven throughout these statutes and the cases interpreting them is
the privacy interest in medical records. Medical records fall within a
sphere of privacy afforded by section 23. n14 Hunter v. State, 639 So. 2d 72
(Fla. 5th DCA 1994)  [*37]  (followed by Ussery v. State, 654 So. 2d 561
(Fla. 4th DCA 1995)). Whether they are obtained by means of a subpoena or a
warrant, their protected status remains the same.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n13 The majority also distinguishes Viatical by suggesting it dealt with
innocent third parties as opposed to the innocent (until proven guilty)
first party involved in this case. Slip Op. at 7. In my view, that is a
distinction without a difference as relates to a person's right to privacy
under section 23.

n14 As Justice Arthur Goldberg once wrote while discussing the right to
privacy under the U.S. Constitution, "the right of privacy is a fundamental
personal right, emanating 'from the totality of the constitutional scheme
under which we live.'" Griswold v. Connecticut, 381 U.S. 479, 494, 14 L. Ed.
2d 510 (1965) (Goldberg, J., concurring (quoting Poe v. Ullman, 367 U.S.
497, 521, 6 L. Ed. 2d 989 (1961)).
 
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The simple fact remains -- our legislature has mandated greater protection
 [*38]  for a person's medical records than other types of property. That
protection is found under the statutory headings of "confidentiality" and
"patient's records." See §§ 395.3025 and 456.057, Fla. Stat. (2003). I would
therefore focus on the confidentiality and privacy interests in these
medical records statutes rather than the subpoena process they employ.

Our task should be to construe and harmonize competing statutory provisions.
Mann v. Goodyear Tire & Rubber Co., 300 So. 2d 666 (Fla. 1974); Wilensky v.
Fields, 267 So. 2d 1 (Fla. 1972); see also First Mortg. Corp. of Vero Beach
v. Stellmon, 170 So. 2d 302 (Fla. 2d DCA 1964) (statutes should be construed
so that all parts are meaningful). We should not ignore one provision simply
to enforce the other. Howarth v. City of DeLand, 158 So. 294, 298 (Fla.
1934).

Recognizing the right to privacy in medical records and ensuring only those
relevant to the crime under investigation are "disclosed" in the least
intrusive manner does not engraft a restriction on the State's power of
search and seizure.  [*39]  n15 For if not the court system, who will give
meaning to section 23? See John Sanchez, Constitutional Privacy in Florida:
Between the Idea and the Reality Falls the Shadow, 18 NOVA L. REV. 775
(1994).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n15 I find the majority's reliance on State v Hume, 512 So. 2d 185 (Fla.
1987), Madsen v. State, 521 So. 2d 110 (Fla. 1988), and State v. Hester, 618
So. 2d 1365 (Fla. 1993), to avoid the import of section 23, to be misplaced.
Each of those cases dealt with whether the State had properly seized
evidence. Not one of them dealt with the "disclosure" of otherwise
privileged medical records.
 
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Warrants are a means by which the State may "search" and "seize" relevant
evidence when probable cause exists to believe that a crime has been
committed. They were not designed to set the parameters of "disclosure" of
items otherwise protected by our constitution. A magistrate's determination
of what might appear relevant at the time a warrant is issued is  [*40] 
simply insufficient to protect an individual's right to privacy in their
medical records. Only when the records have actually been seized can a full,
fair, and specific determination of relevancy be made.

In this case, the warrant requested "medical records," not medical records
related to prescriptions. The medical providers, professionals in medicine,
are but lay persons in the law. They bundled up all of the medical records,
even those irrelevant to the crime under investigation, as the majority
acknowledges, and turned them over to the State. If we simply deny the writ,
there is no protection afforded the petitioner. Once disclosed, the
petitioner's privacy interest in his medical records is forever lost. While
there is value in a post-seizure hearing, there is no value in a
post-"disclosure" hearing.

In my view, the hearing afforded the petitioner did not allow the parties to
address significant issues before "disclosure" was ordered. This is due in
part to the initial positions taken by the parties, each asserting the
dominance of either the medical records or warrant statute. They were unable
to reach the real issue - "disclosure." A meaningful  [*41]  hearing on
the issue of "disclosure" should include an in camera review of the records
seized to determine their relevance and a determination as to whom the
relevant records can be disclosed.

I dissent therefore from the majority's decision to keep its "Eyes Wide
Shut" to the right to privacy in a person's medical records. I would grant
the petition, issue the writ, quash the order of disclosure, and remand the
case to the trial court to determine the relevancy of the records seized and
to whom, if anyone, those records may be "disclosed." The doctor shopping
statute speaks in terms of a patient's obligation to inform his doctors as
to whether "controlled substances or a prescription for a controlled
substance of like therapeutic use from another practitioner" has occurred
within the previous 30 days. See § 893.13(7)(a)(8), Fla. Stat. (2003). Thus,
the details of petitioner's medical condition and treatment unrelated to
information concerning disclosure of other prescriptions are not relevant
and should not be disclosed. n16

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n16 It would also seem advisable that when medical records are the subject
of a search warrant, it would be a better practice for the State to keep the
warrant and the accompanying affidavit under seal until an impartial
magistrate is able to determine relevancy. Only in this manner can the
underlying philosophy of section 23 be guaranteed.

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