S.P. v. Vecchio

• Decision Date: 01 October 2014
• Docket Number: No. 4D14–14.,4D14–14.
• Citation: 162 So.3d 75
• Parties: S.P., by and through her natural guardian R.P., Petitioner, v. Anthony VECCHIO and the State of Florida, Respondents.
• Court: Florida District Court of Appeals

162 So.3d 75

S.P., by and through her natural guardian R.P., Petitioner

v.Anthony VECCHIO and the State of Florida, Respondents.

No. 4D14–14.

District Court of Appeal of Florida, Fourth District.

Oct. 1, 2014.

Roberto Martinez and Latoya C. Brown of Colson Hicks Eidson, Coral Gables, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney

General, West Palm Beach, for respondent State of Florida.

Opinion

CIKLIN, J.

S.P., a non-party child victim in a criminal case against Anthony Vecchio, by and through her natural guardian, seeks certiorari review of a non-final order granting Vecchio's motion to unseal S.P.'s medical records. We granted the petition on May 28, 2014, and now follow with this opinion. Because compulsory disclosure of the records would violate both S.P.'s constitutional right to privacy and her psychotherapist-patient privilege, we grant S.P.'s petition and quash the trial court's order requiring the child victim to unseal her medical records.

Background

Vecchio was charged with lewd or lascivious battery, lewd or lascivious molestation, and battery on a child. A security guard working the night shift at a Boca Raton condominium encountered S.P., fourteen years of age at the time, who claimed she had escaped from someone named Tony. The guard would later state in a deposition that he saw video footage of Vecchio kissing S.P. in one of the condominium's elevators. S.P. was transported to a child protection team (CPT)¹ for a sexual battery exam and a doctor with the CPT recovered semen from S.P.'s vaginal area which was found to have come from Vecchio. The genital examination also produced evidence of scant bleeding and blunt force trauma which was consistent with S.P.'s version of events. During the time of the exam and into the next morning, a Boca Raton Police Department detective conducted an interview with Vecchio during which he admitted to performing sexual acts with S.P. When pressed about S.P.'s age, Vecchio denied having knowledge of her age although he guessed it to be between eighteen and twenty years. Vecchio admitted to penetrating the victim with his finger.

While the criminal case against Vecchio was pending, the state filed the declaration of Dr. Richard Jackson for the purpose of establishing S.P.'s unavailability for Vecchio's then upcoming criminal trial. For the preceding ten months, Dr. Jackson had been treating S.P. at a Utah residential treatment center for girls. S.P. had been making progress, but upon learning that the prosecution of Vecchio was still ongoing, suffered a severe relapse which encompassed active suicidal ideation. In his declaration Dr. Jackson stated:

As a result, I decided along with my colleagues at [the treatment center] that S.P. immediately had to be admitted in-patient at a neuropsychiatric hospital in the State of Utah for more intensive treatment.

Dr. Jackson also noted that S.P. was suffering from depressive disorder NOS, anxiety disorder NOS, eating disorder NOS, as well as nightmares. As a result of Dr. Jackson's declaration, the state removed S.P. from its witness list as to its prosecution of Vecchio, with an intent to rely on DNA evidence and Vecchio's statement to police.

Vecchio moved to allow for issuance of subpoenas duces tecum for S.P.'s records, including her medical, psychiatric, pharmacy, hospital, and school records. In support of his motion, Vecchio argued that he had come into possession of information which suggested that, prior to the incident alleged, S.P. had been on medication, suffered from depression and an eating disorder, and had been hospitalized twice. The state objected on the grounds of irrelevancy, although it conceded that S.P. was using Prozac the night of the incident, which might, the state agreed, have some relevance with respect to sentence mitigation. The trial court granted the motion to the extent that it would conduct an in-camera review. During the in-camera review, the trial court found one relevant item² and made it available to the defense after which the records were re-sealed. Shortly before Vecchio's trial, the defense filed a motion to have S.P.'s medical records unsealed, which the trial court denied without prejudice.

On December 14, 2012, Vecchio entered an open plea of guilty to lewd or lascivious battery, lewd or lascivious molestation and battery on a child. Prior to the imposition of sentence, a sentencing memorandum was prepared and offered by the state. The memorandum noted the emotional distress the victim continued to suffer as a result of the incident. In addition to its memorandum, the state introduced testimony from S.P.'s sister and father who reported, among other things, that S.P. had intentionally run into traffic while at the Utah facility; that she suffered from nightmares and eating disorders; and that she would call her father at all hours of the day and night telling him that she was contemplating self-inflicted injury. The trial court sentenced Vecchio to 96 months in prison followed by 84 months of supervision. The sentence represented a downward departure from the 185 months that Vecchio scored under the sentencing guidelines.

After sentencing, Vecchio appealed from his judgment and sentence. Before filing his initial brief, however, Vecchio moved for an extension of time and asked this court to relinquish jurisdiction so he could request that the trial court unseal the victim's medical records for purposes of raising a discovery violation issue on appeal. We granted his unopposed motion to relinquish jurisdiction to enable Vecchio to file a motion to unseal S.P.'s medical records.

In accordance with our relinquishment order, Vecchio filed the instant motion to unseal S.P.'s medical records. While arguing his motion before the trial court, Vecchio asserted that if he had been given access to “complete information” before he voluntarily entered his plea, he could have made a more informed choice regarding resolution of the criminal prosecution against him including a specific plea offer from the state.³ Vecchio argued to the trial court that if he had known all of S.P.'s mental health information cited by the state, “his decision would have been different,” although Vecchio offered no specificity in that regard. Vecchio also asserted that because he was denied access to S.P.'s complete medical record files, he was unable to properly prepare for sentencing. Vecchio suggested to the trial court that he sought review of S.P.'s records not necessarily to observe what was contained therein but rather to determine what was not included in the private records and yet offered by the state through the testimony of S.P.'s sister and father. (As Vecchio put in his motion to unseal, “to see what has been left out on purpose.”). Should such exclusions be apparent, Vecchio argued, then a discovery violation would have occurred pursuant to Brady.⁴

Through her natural guardian, S.P. filed her “opposition to motion to unseal medical records,” arguing that the records are privileged and private. She urged the trial court to deny Vecchio's motion, particularly because the court had already conducted a thorough in-camera inspection of S.P.'s private and highly sensitive records and concluded all but one item was irrelevant.

In a written order, the trial court granted Vecchio's motion to unseal S.P.'s medical records and the instant petition for writ of certiorari followed.

Analysis

Certiorari review is available to non-parties under certain circumstances. Borck v. Borck, 906 So.2d 1209, 1211 (Fla. 4th DCA 2005) (quashing order compelling production of financial information of non-parties). Additionally, certiorari is a proper vehicle to review orders compelling the production of records that are protected by the psychotherapist-patient privilege. Smith v. Smith, 64 So.3d 169, 170 (Fla. 4th DCA 2011) (citations omitted).

S.P. argues that her medical records are protected from disclosure by both constitutional and statutory rights to privacy, as well as the psychotherapist-patient privilege, and as such, the trial court departed from the essential requirements of the law by ordering their disclosure without compelling reason. She contends that the disclosure will result in irreparable harm to her, not remediable by appeal. Vecchio argues that disclosure of the medical records is compelled by the potential existence of a Brady violation.

We agree with S.P. Her records are protected, and although confidential clinical records may be disclosed where the court determines there is good cause, see section 394.4615(2)(c), Florida Statutes (2013), there is no such good cause here.

Florida law is clear that a person's medical records enjoy a confidential status. First, the right to privacy contained in Article I, section 23 of the Florida Constitution has been extended to preclude dissemination of one's medical records. See State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Second, confidential medical records are protected from disclosure as provided in Florida statutory law. See § 456.057(7)(a), Fla. Stat. (2013) (providing that, with few exceptions, medical records may not be furnished to any person other than the patient or the patient's legal representative or other treating health care providers, except upon written authorization of the patient). Third, section 90.503(2) provides that under the psychotherapist-patient privilege, a patient has a privilege to refuse to disclose confidential information or...