Your Pharmacy Records and Doctor Shopping
Recently, police here in Florida have been going to different pharmacies and obtaining copies of the pharmacy records of individuals suspected of doctor shopping. After some of those individuals were later charged with violating Florida's doctor-shopping law, they argued to a judge that their rights were violated when the police obtained their records without a search warrant.
One such case in which this occurred was State of Florida v. Cater in which Ms. Carter argued that:
1. The warrantless seizure of her prescription records violated her constitutional rights to privacy and due process of law.
2. Her pharmacy could not legally give the police her records unless she was first given notice and the opportunity to either consent to the release of her records or else have the issue decided by a judge.
The trial judge agreed with Ms. Carter and granted her motion to suppress her pharmacy records that were seized by the police without a warrant.
However, Florida's First District Court of Appeal reversed the lower-court's ruling on several different grounds including:
1. Neither Florida statute 893.07(4) nor 465.017(2)(a) require the police to obtain a subpoena or search warrant before seizing someone's pharmacy records if the police reasonably suspect that person of being involved in doctor shopping. Additionally, neither of these statutes require that a patient be given prior notice that the police intend to seize her pharmacy records.
2. The federal Health Insurance Portability and Accountability Act ("HIPPA") does not govern the conduct of law enforcement officers or prosecutors. However, even if it did govern such conduct, it was not violated in this particular case. And even if HIPPA had been violated in this particular case (which it was not), the proper remedy would be for a court to impose fines and imprisonment, not suppress evidence.
3. Lastly, although article I, section 23 of the Florida Constitution does indeed provide for a right of privacy, that right is not absolute insofar as a patient's right to privacy in her medical records is concerned. That right must yield to a compelling government interest such as the control and prosecution of criminal activity.
Can the police walk into a Pharmacy without a subpoena and ask for a patient profile or a copy of a written prescription they suspect was either altered, forged or possibly part of a Dr Shopping search?
Attorney Chapman's response:
On March 12, 2010, I posted on article on my website entitled "Your Pharmacy Records and Doctor Shopping" in which I discussed the issues that you raise in your question. You can read that article at:
http://www.justiceflorida.com/2010/03/articles/florida-search-seizure-law/your-pharmacy-records-and-doctor-shopping/
Man that is way smart to go to different pharmacies and check out if people are getting too many prescriptions. You would hope that the actual pharmacy would start questioning things if the same person kept coming to the same pharmacy getting the same prescription over and over again.