The Health Insurance Portability and Accountability Act, HIPAA, outlines the proper procedure for obtaining medical records in a criminal setting by authorizing “release during the course of any judicial or administrative proceeding when there is a court order or subpoena or discovery process if ensuring proper safeguards will be followed.  In addition, HIPAA permits law enforcement officials to receive medical records when there is a court order, subpoena or summons issued by a judicial official.”  45 C.F.R. §§ 164.512(e)(1)(i), (f)(1)(ii).

 Florida, however, affords additional statutory protection to the medical records of an accused.  Protection can be found in Article I, Section 23 of the Florida Constitution in the Right of Privacy Clause, in section 395.3025(4)(d) and 456.057 of the Florida Statutes.  This additional protection requires the consent of the accused or a proper showing that the party seeking disclosure has provided appropriate notice.

Further, section 395.3025(4)(d) of the Florida Statutes covers copies of patient and personnel records and examination.  It states “[p]atient records are confidential and must not be disclosed without the consent of the patient or his or her legal representative, but appropriate disclosure may be made without such consent 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.  Fla. Stat. § 395.3025(4)(d) (emphasis added).  This procedure is repeated in section 456.057.  See also State Farm Mut. Auto. Ins. Co. v. Kugler, 840 F.Supp.2d 1323, 1328 (S.D. Fla. 2011) (recognizing the notice requirement the State of Florida affords concerning individual’s medical records).

Florida courts have been adamant in upholding the legislature’s intent and “further acknowledge that medical records privacy rights must be balanced against an opposing party’s entitlement to discovery.”  Estate of Carrillo v. F.D.I.C., 11-22668-CIV, 2012 WL 1831596 at 3 (S.D. Fla. 2012).   See also State v. Johnson, 814 So.2d 390, 393 (Fla. 2002) (Florida Supreme Court finding a Florida State Attorney lacks the subpoena power to override the notice requirement of Fla. Stat. § 395.3025(4)(d)).  It is this additional common sense protection that provides an opportunity for an accused to combat criminal charges and effectively present a defense during a criminal proceeding.  Without this notice requirement, an accused would be left with little ability to file objections or in limine motions to suppress, making these statutes imperative to protecting the privacy rights of an accused in relation to the overbearing interest of the state in pursuing a conviction.

By Ryan C. Morris

Foundation Legal, P.A.

ryan@foundationlegalpa.com

www.foundationlegalpa.com

 

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