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Doctor Shopping By State Authorities

A Person Under Investigation For "Doctor Shopping" By State Authorities Has No Right To Privacy In Pharmacy Prescription Records

The case of State v. Carter, 34 Fla. L. Weekly D2466a (Fla.1st DCA November 30, 2009) involved a violation of Florida Statute $ 893.13(7)(a)8. This statute makes it a third degree felony for any person obtain a controlled substance or prescription for a controlled substance without informing the doctor of the fact that the person had received a similar prescription or controlled substance from another doctor within the previous thirty days.

During the investigation the police went to the pharmacy that filled prescriptions for the defendant.

The defendant filed a motion to suppress the pharmacy records because the pharmacy had turned over records to law enforcement without a warrant and without giving any notice to the defendant.

The appellate court reversed the trial court's order suppressing the evidence based upon several legal issues.

First, Florida Statute $ 893.07(4) requires pharmacies to maintain prescription records for two years "for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." The court noted that the statute does not require a subpoena, warrant, or prior notice to the patient before law enforcement obtains the records.

The court next considered Florida Statute $ 465.017(2)(a), which addresses the release of controlled substance records maintained by a pharmacy. It notes that section prohibits release of prescription records by the pharmacy to anyone other than the patient except as permitted under Florida Statutes chapter 893. It then noted that the records from the pharmacy were obtained pursuant to chapter 893.

The court also held that the Federal Health Insurance Portability and Accountability Act ("HIPAA") does not provide any legal basis for the suppression of the pharmacy records. The court noted that privacy issues addressed in "HIPAA" concern protecting health information in the possession of certain covered entities, such as health plans, healthcare clearinghouses and healthcare providers. It does not effect providing information to law enforcement officers or prosecutors.

The court also noted that "HIPAA" does not provide a remedy of suppression of records and therefore would not support the suppression of the prescription records from the pharmacy.

Finally the court considered the right to privacy found in Article I, Section 23 of the Florida Constitution. The court held that the constitutional right to privacy in medical records is not absolute and must yield to compelling government interests, which include controlling and prosecuting criminal activity. The court went on to citeWhalen v. Roe, 429 U.S. 589 (1977) in support of its contention that the regulation of the sale and distribution of dangerous drugs is a recognized vital interest of the state.

Also cited was Cushing v. Department of Professional Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) which held that a surgeon had no reasonable expectation of privacy with respect to completed prescriptions in the possession of a pharmacy.

The court reversed the order suppressing the prescription records and remanded the case to the circuit court for further proceedings.

This case excludes several legal theories as a basis for suppressing the pharmacy records obtained by law enforcement authorities in a drug investigation. A valid defense to the charge of "doctor shopping" must therefore rest upon other factors.