Leka v. State

• Decision Date: 02 October 2019
• Docket Number: Case No. 2D18-5095
• Citation: 283 So.3d 853
• Parties: Ladimir LEKA, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

283 So.3d 853

Ladimir LEKA, Petitioner,

v.STATE of Florida, Respondent.

Case No. 2D18-5095

District Court of Appeal of Florida, Second District.

Opinion filed October 2, 2019

Leslie M. Sammis of Sammis Law Firm, P.A., Tampa, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Respondent.

BLACK, Judge.

Ladimir Leka seeks certiorari review of the trial court's order granting the State's request to subpoena his medical records. We grant the petition and quash the November 28, 2018, "Order Granting Motion to Request Subpoena Duces Tecum for Medical Records of Ladimir Leka."

In August 2018, the State filed a "Motion to Request Subpoena Duces Tecum for Medical Records of Ladimir Leka." Because there was no pending criminal action against Leka, the motion was docketed as an "order to show cause" case. In the motion, the State cited sections 395.3025 and 456.057, Florida Statutes (2018), as the bases for the request for Leka's medical records. The State acknowledged the privacy of patient medical records but contended that the right to privacy may be overcome where the State establishes that "there is a reasonable founded suspicion that the material contain[s] information relevant to an ongoing criminal investigation." The motion provided that the State had notified Leka that a subpoena for his medical records would be issued unless he objected, see §§ 395.3025(4)(d), 456.057(7)(a)(3) ; Leka then objected, necessitating a hearing.

In September 2018, Leka filed a "Notice of Objection" in the show cause case. Leka noted that the State's motion referenced medical records, Bayfront Medical Center, "a criminal investigation," and named a St. Petersburg Police Department officer but that it did not indicate a time, date, or place of any alleged conduct by Leka that would give rise to a criminal investigation; the nature of the criminal allegation; which medical records were sought to be produced; and how any alleged criminal action related to Leka's medical records. The notice also provided that Leka had not been arrested or cited for any offense. Leka contended that the notice provided by the State was legally insufficient.

The initial hearing on the State's motion was continued after Leka successfully argued that he had not received a copy of the proposed subpoena. At the subsequent hearing, Leka again objected to moving forward because he had yet to receive a copy of the proposed subpoena. The hearing transcript indicates that counsel was then provided with the proposed subpoena, and she objected to it as overly broad, requesting "all medical records and treatment," including blood analysis, toxicology analysis, and physicians' names, for a specific date but without limitation, explanation, or relevancy. The specific date was not noted on the record, and the proposed subpoena was not filed with the court or admitted into evidence. Counsel further argued that she was objecting to the issuance of the subpoena for all of the reasons stated in the notice, including that the State had no compelling interest in Leka's medical records.

The State called Officer Alli to testify. The officer testified that he was employed by the St. Petersburg Police Department. As part of the DUI unit he was called to a traffic accident involving two vehicles on December 9, 2017. Over a hearsay objection, Officer Alli testified that while he was en route to the scene, the investigating officer on scene advised Officer Alli that "the suspected driver" of one of the vehicles was being transported to Bayfront Medical Center. The same officer also advised Officer Alli that he had "detected signs of impairment" in the suspected driver. Officer Alli then proceeded to Bayfront Medical Center.

Upon arrival, Officer Alli saw that "the Defendant was in one of the trauma rooms." At no time did Officer Alli identify Leka as the man he had seen in the trauma room or as "the Defendant" to whom he referred. There was no testimony as to how Officer Alli knew that the person he saw was the suspected driver of the vehicle, and at no time was Leka identified as the suspected driver. Over objection, Officer Alli testified that medical personnel informed him that "the Defendant was physically resisting them and yelling ‘No blood for police, no blood for police,’ as soon as they attempted to help him" and that subsequently the man had been sedated. Officer Alli testified that he had been "close enough to the Defendant [to see] his eyes were slightly open" and notice "they were bloodshot red and watery still"; the officer also "detect[ed] the odor of alcoholic beverage" on the man's breath. Over multiple objections, including hearsay and violation of section 316.1933(2)(a), Florida Statutes (2018), Officer Alli testified that medical personnel advised him that "the Defendant" had a blood alcohol level of .423. Officer Alli further testified that upon speaking with an unidentified officer at the scene of the traffic accident, he had been told that "the Defendant's girlfriend" was a passenger in the vehicle that "the Defendant was driving." The officer confirmed that no citations had been issued.

There was no additional testimony or evidence submitted to the court. No probable cause affidavit or police or crash report was discussed or introduced into evidence. During arguments, the court noted that there was "very, very limited presentation that [was] un-objected to firsthand knowledge of the witness" such that "the officer's personal knowledge facts" did not create the necessary nexus that the State was required to establish. The court went so far as to say that the State was "dead in the water if the hearsay is excluded." Taking the motion under advisement, the court requested submissions from both sides as to whether it could consider hearsay in determining whether the State had met its burden. On November 28, 2018, the court entered its order granting the motion for a subpoena duces tecum, noting that it had considered the motion, objection, memoranda on the admissibility of hearsay evidence, arguments of counsel, and the entire record.

In his petition to this court for a writ of certiorari, Leka contends that the trial court departed from the essential requirements of law by granting the State's motion without requiring the State to establish a nexus between the requested records and any ongoing criminal investigation or criminal proceeding.¹

I. Certiorari Standard

Orders granting the State's requests for the subpoena of medical records pursuant to sections 395.3025 and 456.057 have been reviewed by petitions for writ of certiorari by this court and others. See, e.g., Gomillion v. State, 267 So.3d 502, 506 (Fla. 2d DCA 2019) ; Faber v. State, 157 So.3d 429, 430 (Fla. 2d DCA 2015) ; Ussery v. State, 654 So.2d 561, 562 (Fla. 4th DCA 1995) ; Hunter v. State, 639 So.2d 72, 72 (Fla. 5th DCA 1994). Subpoenas for patient medical records grant access to materials which have been recognized as private and protected by the Florida Constitution. Mullis v. State, 79 So.3d 747, 751 (Fla. 2d DCA 2011) ("Individuals enjoy a right of privacy in their medical records under article I, section 23, of the Florida Constitution." (citing State v. Johnson, 814 So.2d 390, 393 (Fla. 2002) )). And although "[t]he right to privacy is not absolute and will yield to compelling governmental interests," Johnson, 814 So.2d at 393, a violation of the constitutional right—and in this case, a violation of either statute—causes immediate harm which is irremediable on postjudgment appeal, see Gomillion, 267 So.3d at 506 ("It has long been recognized that a trial court order permitting discovery of information that is privileged or otherwise legally protected as private causes an immediate injury that success in a postjudgment appeal is unable to fix.").

Sections 395.3025 and 456.057 each represent a " ‘legislative attempt to balance a patient's privacy rights against legitimate access to’ the patient's medical information." See State v. Sun, 82 So.3d 866, 870 (Fla. 4th DCA 2011) (quoting Johnson, 814 So.2d at 393 ); accord Mullis, 79 So.3d at 751 n.6. In pertinent part, section 456.057 provides:

Except as otherwise provided in this section and in s. 440.13(4)(c), [medical] records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient's legal representative, or other health care practitioners and providers involved in the patient's care or treatment, except upon written authorization from the patient. However, such records may be furnished without written authorization ... [i]n 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.

§ 456.057(7)(a)(3). Similarly, section 395.3025 provides, in relevant part:

Patient [hospital] 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 ... [i]n 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.

§ 395.3025(4)(d).

We note that of the certiorari cases discussing a subpoena ordering production of medical records, almost all of them indicate that a criminal action had been pending against the patient whose medical records were sought prior to the State's request for a subpoena. See, e.g., Gomillion, 267 So.3d at 504 ; Faber, 157 So.3d at 430 ; Tyson v. State, 114 So.3d 443, 444 (Fla. 5th DCA 2013) ; cf. State v. Rivers, 787 So.2d 952, 953 (Fla. 2d DCA 2001) (reviewing by petition for writ of certiorari an order denying the State's...