Barahona v. State ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed June 10, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-913
Lower Tribunal No. 11-6237-A
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Jorge Barahona,
Petitioner,
vs.
The State of Florida, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Nushin
Sayfie, Judge.
J. Rafael Rodriguez, for petitioner.
Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third
District, and Philip L. Reizenstein, Assistant Regional Counsel, for respondents.
Before SALTER, FERNANDEZ and SCALES, JJ.
SALTER, J.
Jorge Barahona petitions for a writ of prohibition or certiorari1 to preclude
the review of his medical records in camera. His co-defendant/wife, Carmen
Barahona, requested the records in pretrial discovery. Jorge and Carmen Barahona
were indicted for the first-degree murder of one of their adoptive children, N.B.;
multiple counts of aggravated battery upon N.B.; additional counts of aggravated
battery upon another adoptive child, N.B.’s twin brother, V.B.; charges of child
abuse and neglect relating to both children; and a charge of mutilating or grossly
abusing N.B.’s body after her death. The State is seeking the death penalty against
both Jorge and Carmen Barahona.2
Carmen Barahona filed a pretrial motion for the issuance of a subpoena
duces tecum seeking medical records (including psychological and psychiatric
records) from a local hospital pertaining to Jorge Barahona. She maintained that
the records were necessary and relevant to her defense, and she asked the trial
court to review the records in camera. The court held two hearings on the motion.
Following the first hearing, the court directed Carmen Barahona to amend her
motion to demonstrate good cause for an in camera review, as a precondition to
1 “Certiorari is the appropriate vehicle to review an interlocutory order requiring
the production of confidential medical records.” Tyson v. State, 114 So. 3d 443,
444-45 (Fla. 5th DCA 2013).
2 The parties agreed that their cases would be severed for trial.
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assessing the alleged relevance of any documents that might be responsive to the
subpoena.
Carmen Barahona then filed a supplement to her motion for the subpoena to
address her “good faith” request for Jorge Barahona’s medical records. Although
she described statements by Jorge Barahona to the police that he was hospitalized
twice because the child victims were poisoning him, purportedly corroborated by
V.B. (describing Jorge Barahona’s claim that the children were trying to poison
Jorge by putting rat poison on the baseboard and baby oil in his two-liter bottle of a
soft drink), neither the supplement nor the original motion links Jorge Barahona’s
medical records as sought from the hospital to any defense to any charge against
Carmen Barahona.
At the close of the second hearing on the motion for the subpoena, the trial
court ruled that Carmen Barahona had shown a need for the in camera review of
the medical records by the court, as they might contain information “that [Carmen
Barahona] may be able to utilize in nudging forth their defense, or their
mitigation . . . it could be either.” The trial court stayed the effectiveness of the
order in order to permit Jorge Barahona to seek relief in this Court.
Analysis
Mr. Barahona’s petition asserts that: the medical records are privileged
under the physician-patient privilege (citing Acosta v. Richter, 671 So. 2d 149
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(Fla. 1996)); there is no proffered, specific nexus between his own medical records
and Ms. Barahona’s defense; there is a valid concern that any such records made
available to Ms. Barahona will in turn be provided by her to the State by virtue of
the reciprocal discovery in effect in the case under Florida Rule of Criminal
Procedure 3.220(d)(1)(B) (see State v. Boggess, 698 So. 2d 942 (Fla. 3d DCA
1997)); he may be prejudiced because of the trial court’s review of such records
and subsequent role in the sentencing phase of the case; and disclosure is
prohibited by the Health Insurance Portability and Accountability Act (“HIPAA”)3
and its privacy rule.4
In her response,5 Ms. Barahona argues that the subpoena was required to
permit her to “obtain information to explore possible defenses,” and that the
“specifics as to the relevancy of the medical records are detailed” in her
supplement to the motion for the subpoena filed after the first hearing on the
matter. She also asserts these reasons for seeking the records:
3 42 U.S.C. §§ 1320d-1320d-9 (2014).
4 45 C.F.R. §§ 164.102 - .106 (2015).
5 The State has also filed a response, but has taken no position relating to Mr.
Barahona’s medical records on the state of the current record. The State has
requested that any remedy crafted by this Court “be narrow and not prejudice any
discovery rights the State might have in the case as it proceeds in the trial court.”
We confirm that this opinion is limited in scope and confined to the existing
record. The State has also asserted its entitlement to the medical records, if
produced to Ms. Barahona, as a matter of reciprocal discovery.
4
Prior to the death of N.B., Jorge Barahona was hospitalized
twice and the medical records sought would confirm the
hospitalization and might contain additional information regarding
Jorge Barahona’s beliefs about N.B. and V.B. attempting to poison
him. Carmen Barahona is charged in multiple counts in the indictment
with aggravated child abuse and aggravated battery upon a child by
locking V.B and N.B in a bathroom. The proof that Jorge Barahona
believed his children were trying to poison him, and that he told this
to his wife-who is now his co-defendant- could form the basis for a
defense to those charges. . . .
....
Jorge Barahona claimed in his statement to the detectives that
he was hospitalized as a result of his children trying to poison him.
Jorge Barahona made N.B. and V.B sleep in the bathtub. He had
various explanations for this. He also taped their wrists. Carmen
Barahona was present in the home during this time period. She is
charged with multiple acts of child abuse. Her knowledge of Jorge
Barahona’s claims that their children were trying to poison him is
directly relevant to a possible defense to the child abuse charges. If
Jorge Barahona was telling Carmen Barahona that their children were
trying to poison him and Carmen Barahona was complicit in taping
the hands of N.B and V.B and putting them in the bathtub to sleep,
then the medical records of Jorge Barahona would explain her actions.
(Record references omitted).
Ms. Barahona also argues in her response—persuasively and correctly—that
HIPAA’s privacy rule and counterpart Florida laws6 do not preclude the
production of otherwise-private personal medical records when a judicial officer
orders them to be produced. Ms. Barahona does not, however, address the strong,
and in this case controlling, protection afforded to personal medical records by the
6 §§ 395.3025(4) and 456.057, Fla. Stat. (2014).
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right to privacy in Article I, section 23, of the Florida Constitution, and the
physician-patient privilege codified in section 456.057, Florida Statutes (2014). A
patient’s constitutional right to the privacy of such records must yield to a duly
issued subpoena in a criminal prosecution “when there is a clear connection
between illegal activity and the person whose privacy has allegedly been invaded.”
State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). In the present case, however,
there is no such “clear connection.” Here, as in Tyson v. State, 114 So. 3d 443
(Fla. 5th DCA 2013), the movant has not met its burden to demonstrate the
relevancy of the records requested. Ms. Barahona has not alleged, much less
demonstrated, how any of Mr. Barahona’s hospital records would relate to the
separate case against her (as opposed to the case against Mr. Barahona) and her
prospective defenses. To this point, Carmen Barahona has not asserted that she
had any knowledge—whether from her husband, the child victims, or otherwise—
that Jorge Barahona was claiming that the children were poisoning him, at any
time before or during the incidents detailed in the indictment.
The order compelling disclosure of the petitioner’s personal medical records
under these circumstances constitutes a departure from the essential requirements
of the law that would cause irreparable harm for which Jorge Barahona has no
adequate remedy on appeal. Id. at 445 (citing Ireland v. Francis, 945 So. 2d 524
(Fla. 2d DCA 2006)).
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Petition granted; order quashed.
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