United States v. Evers

Decision Date18 October 2021
Docket NumberCRIMINAL 3:19-CR-250
PartiesUNITED STATES OF AMERICA, v. MARTIN EVERS, Defendant.
CourtU.S. District Court — Middle District of Pennsylvania
MEMORANDUM OPINION

Robert D. Mariani United States District Judge

I. Introduction

Defendant's Motion to Suppress the Search & Seizure of 104 Bennett Avenue, Suite 2C, Milford, PA on August 6, 2019 Pursuant to Franks v. Delaware (Doc. 57) is pending before the Court. Here the Court considers the issue of whether, in the context of the Fourth Amendment, Defendant had a reasonable expectation of privacy related to the execution of the Search and Seizure Warrant on August 6, 2019. (Doc. 83 at 9.)

The Court held an Evidentiary Hearing on September 28, 2021, on this issue and both parties presented witnesses. At the close of the hearing, Defendant's counsel requested time to submit relevant authority not identified in previous filings and a cover letter regarding the applicability of the cases to the matter at issue. The Court orally granted the request and issued an Order to that effect on September 29, 2021. (Doc. 164.) The Court's Order also allowed the Government an opportunity to respond to Defendant's filing. (Doc. 64 ¶ 2.) The parties having filed their post-hearing documents (Docs. 167, 168), this matter is ripe for disposition.

For the reasons discussed below, the Court concludes that Defendant did not have a reasonable expectation of privacy related to the execution of the Search and Seizure warrant. Therefore his Motion to Suppress the Search & Seizure of 104 Bennett Avenue, Suite 2C, Milford, PA on August 6, 2019 Pursuant to Franks v. Delaware (Doc. 57) will be denied.

II. Factual Background

Defendant Martin Evers began working as a doctor of internal medicine for Bon Secours Charity Health Systems ("BSCHS") in 2000. (Doc. 69 at 2.) He was a "W-2" employee of BSCHS who worked at the BSCHS office at 104 Bennett Avenue, Suite C, Milford, Pennsylvania, from 2008 to 2019. [Id.; Doc. 104 at 8.) Dr. Evers was the only doctor at the facility which was also staffed with two medical assistants and two receptionists. (Evidentiary Hearing (Ev. Hr'g).) The office manager for the Bennett Avenue facility was not on-site. (Ev. Hr'g.) All of the patients at that location were under the care of Dr. Evers. (Id.) BSCHS leased the facility, paid the staff, purchased all supplies, owned the computer and electronic medical records ("EMR") system, and covered all expenses. (Id.)

According to the Evidentiary Hearing testimony of Corey Deixler, the Senior Vice-President of Physician Services of BSCHS, Dr. Evers had keys to the facility, had clinical responsibility for the Bennett Avenue location, and was responsible, along with the office manager, for assuring that the policies of BSCHS were executed and respected. (Ev. Hr'g.)

Mr. Deixler agreed that Dr. Evers is one of those who is expected to assure that the staff honors the confidentiality and care of records and ethical standards. (Id.)

Mr. Deixler testified that BSCHS encompasses three hospitals in Rockland and Orange County, New York, long-term care facilities in Orange County, a home health service in both Rockland and Orange County, and a medical group that encompasses mostly Rockland and Orange County with some practices in North Bergen and Pike County, Pennsylvania. The medical group is comprised of forty different offices across three states and all are under the umbrella of the Bon Secours health system. The employees at these locations are all BSCHS medical group employees. Mr. Deixler estimated that approximately 170 practitioners (physicians, nurse practitioners, and physician assistants) are in the medical group.

Dr. Evers testified that all of the patient charts which he worked on were of his patients, and he controlled and protected the information he inputted. (Ev. Hr'g.) When asked what his expectation was of maintaining the confidentiality and privacy of patient records, Dr. Evers responded that his expectation and that of his patients was that, as their physician, he would maintain the confidentiality of those records at all times. (Ev. Hr'g.) He confirmed that he considered the information he put in a patient's file and protected to be his professional private work. (Id.) Dr. Evers later clarified that it was the confidentiality of the patients he was protecting, (id.) Dr. Evers entered into a Physician Employment Agreement in 2009 which continued in effect throughout his employment with some addenda but no alterations to the underlying terms. (Ev. Hr'g; Physician Employment Agreement (Doc. 89 at 1-14).) By the terms of the Agreement, Dr. Evers was a full-time employee with "full-time practice" defined as at least forty (40) normally scheduled practice hours per week. (Agreement § 1.04.) Section 2.04 of the Agreement addresses "Records and Reports" and provides as follows:

(a) Physician shall keep and furnish to Employer in a timely manner, accurate records of all services furnished under this Agreement. All records, charts, reports, and similar information and documents that are maintained in connection with the operation of the Medical Practice shall be the exclusive property of Employer and shall be subject to the exclusive control of Employer. Physicians shall have reasonable access to such records, in accordance with applicable law, for inspection and photocopying.

(Agreement § 2.04(a).) The Agreement also provides that

Physician shall cooperate with Employer in maintaining accurate, complete, up-to-date medical records (including electronic medical records) for all patients treated by Physician, in accordance with all applicable federal and State laws and regulations, including those applicable to Medicare, Medicaid, Tricare and other federal health programs; and the bylaws, rules, regulations, and policies of the Employer. In addition, Physician will comply with all applicable laws and regulations concerning the confidentiality of medical records and medical record information. The ownership and right of control of all reports, records, and supporting documents prepared by Physician belong to the Employer, provided, Physician will have access to such reports, records, and supporting documents as authorized by Employer policies and the applicable law of the State of New York.

(Agreement § 2.04(c).)

The Agreement identified numerous administrative obligations and duties assigned to Dr. Evers, including: clinical direction for clinical activities of the staff at the facility; advise as to the selection, replacement, condition and replacement of equipment and supplies; development of practice policies, subject to review, and support implementation of policies, including those of BSCHS; and development of a schedule in coordination with BSCHS. (Id. § 3.01(1), (2), (9); Ev. Hr'g.) Dr. Evers testified that he fulfilled these obligations, specifically stating that he developed polices related to the confidentiality of patient records and everyone in the office was expected to maintain confidentiality. (Ev. Hr'g.)

Mr. Deixler confirmed that BSCHS medical group retains exclusive custody and control of the medical records which the physician employee is required to generate. (Ev. Hr'g.) He further testified that "reasonable access" means that the physician will have access as needed to perform his duties under the agreement including the generation of medical records. (Id.) Mr. Deixler explained that all of their acute care hospitals and the medical group are on the same electronic record system which facilitates the ability to care for the patient across the continuum. (Id.) In other words, to achieve consistent health care, patient medical records are contained in a password-protected electronic medical records program which is used throughout BSCHS hospitals and medical groups by those who have a legitimate reason to access a patient's chart. (Ev. Hr'g.) Dr. Evers agreed with this and further agreed that a physician could be locked out of the system but could not lock out access for others or otherwise exclude those granted access by BSCHS. (Id.) The medical records for the Bennett Avenue patients were maintained by the staff and Dr. Evers inputting information. (Id.)

On August 6, 2019, law enforcement agents, including DEA Diversion Investigator Gary Derr, entered Suite C of 104 Bennett Avenue with a search warrant pursuant to which they obtained certain medical records identified in the warrant. (See, e.g., Doc. 83 at 7; Doc. 110 at 5.) According to Defendant,

[o]n Tuesday, August 6, 2019, DEA Diversion Investigator Gary Derr (Dl Derr) entered 104 Bennet Avenue with a signed search warrant to search Dr. Evers' medical practice. Dr. Evers reviewed Mr. Derr's credentials, reviewed the search warrant and acknowledged the government agent's authority to search and seize. The government agents came to understand that without a passcode they would not be able to access the medical files of Dr. Evers' medical practice. In the face of the authority of the search warrant, Dr. Evers' staff members acquired access to the patient files for the government agents. Id.
The DEA had accessed the entire inventory of patient files and directed the staff to print off the medical chart of KD. Id. Dr. Evers' medical staff printed off the chart of KD and the DEA walked out of Dr. Evers' office with the KD chart on August 6, 2019.

(Doc. 110 at 5.)

Mr Deixler testified that he received a call from someone on August 6, 2019, informing him that there were individuals at the Bennett Avenue location who were requesting records and stopping patient care at the time. (Ev. Hr'g.) Mr. Deixler said he reached out to the BSCHS legal department about the matter and spoke with the associate general counsel. (Id.) He added that he had learned...

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