author: MOORE, Judge.

text:
    STEWARD MACHINE COMPANY, INC. v. BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA, for its DIVISION UNIVERSITY OF ALABAMA HOSPITAL.
    2080215.
    Court of Civil Appeals of Alabama.
    Oct. 16, 2009.

      Robert Bernard Harwood, Jr., of Rosen Harwood, P.A., Tuscaloosa; and David M. Wilson of Wilson & Berryhill, P.C., Birmingham, for appellant.
    William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for appellee.
    Charles H. Clark, Jr., and David M. Fleming of Huie, Fernambucq & Stewart, LLP, Birmingham, for amicus curiae Alabama Council of Association of Workers’ Compensation Self Insurers Fund, in support of the appellant.
    Gregg Brantley Everett of Kaufman, Gilpin, McKenzie, Thomas & Weiss, P.C., Montgomery, for amici curiae Alabama Hospital Association and Health Care Financial Management Association-Alabama Chapter, in support of the appellee.
   MOORE, Judge.

After inpatient hospital services had been provided to an injured employee of Steward Machine Company, Inc. (“Steward”), between April 4 and April 16, 2006, at the University of Alabama Hospital in Birmingham, the Board of Trustees of the University of Alabama, for its division University of Alabama Hospital (hereinafter referred to as “UAB Hospital”), tendered a bill to Steward for $130,284.09. Steward submitted the bill to an entity referred to as Avizent, Steward’s third-party workers’ compensation administrator, for payment. After screening the bill, Avizent notified UAB Hospital that it disputed some of the charges, and it tendered payment of only $93,766.54. Avizent later sent a letter to UAB Hospital explaining that it had disallowed charges it concluded had been “unbundled or included in another service.”

After efforts to obtain further payment had failed, UAB Hospital submitted the fee dispute to the Alabama Department of Industrial Relations (“ADIR”), which advised Avizent that it considered the disputed charges to be payable. After Avizent refused to pay the disputed charges, UAB Hospital filed a civil action in the Jefferson Circuit Court (“the trial court”) seeking a declaration of its right to full payment. After a bench trial at which ore tenus evidence was presented, the trial court entered a judgment in favor of UAB Hospital on October 22, 2008, in the amount of $37,845.69. Steward appeals from that judgment.

Issues on Appeal

In its 12-page judgment, the trial court found that Avizent had disallowed certain charges for only 1 reason — “unbundling.” The trial court stated:

“ ‘Unbundling’ is a term applied to errors in medical billing where the payment is based on the performance of procedures for which a price is set in advance. Unbundling occurs when a provider seeks to bill for the separate components of a procedure rather than accept the agreed rate set for the overall procedure.”

The trial court concluded that UAB Hospital could not have “unbundled” its charges because UAB Hospital had not previously agreed to any specific global charge for the services it had provided and it did not itemize separate charges exceeding any previously agreed upon global charge. Rather, the trial court found, UAB Hospital had merely itemized its fees for each service it had provided in accordance with its internal “Chargemaster.” Therefore, the trial court reasoned, Avizent had improperly disallowed certain charges for “unbundling,” a billing practice that did not even apply. The trial court determined that UAB Hospital’s billing complied with its “Negotiated Participating Agreement Between Department of Industrial Relations and University of Alabama at Birmingham Hospital” (“the Participating Agreement”), the relevant language of which will be set out in detail infra, and with the terms of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975.

On appeal, Steward argues that the trial court erroneously interpreted the Participating Agreement so that, in Steward’s words, “a self-insured employer is prohibited from performing bill screening for identification of issues such as unbundling of charges.” For the following reasons, we respectfully disagree with Steward’s argument and affirm the judgment of the trial court.

Discussion

In 1992, the Alabama Legislature enacted sweeping changes to the Alabama Workers’ Compensation Act. Among the-stated goals of the new Act was to sustain “a fair and affordable workers’ compensation system” and to provide “quality medical services to employees” “at a reasonable and fair cost to employers.” Ala. Acts 1992, Act No. 92-537, § 1. To accomplish those goals, the legislature incorporated into the Act, among other things, the concept of managed care and a system by which health-care providers are to be reimbursed according to “prevailing” rates. See Ala.Code 1975, § 25-5-1(15) (defining the term “prevailing” as “[t]he most commonly occurring reimbursements for health services, other than those provided by federal and state programs for the elderly (Medicare) and economically disadvantaged (Medicaid)”).

For hospitals, the prevailing rate of reimbursement or payment is established by the method set forth in Ala.Code 1975, § 25-5-77. That Code section provides that, for “participating hospitals,” “the prevailing rate shall be negotiated” by ADIR and the participating hospital “based on [the hospital’s] treatment of comparable type cases” for the preceding year. Ala.Code 1975, § 25-5-77(a). “By definition, the prevailing rate of payment or reimbursement is self-defining and self-setting.” Ala.Code 1975, § 25-5-293(f). In other words, the legislature intended that each participating hospital would establish through negotiations with ADIR its own individualized prevailing rate of reimbursement; those negotiations were to be based on each hospital’s own internal data regarding the fees it had charged during the preceding year for comparable medical treatment provided to the public.

In accordance with § 25-5-77, UAJB Hospital entered into the applicable Participating Agreement with ADIR on February 1, 2006. The Participating Agreement stated, in general, that UAB Hospital would bill for services provided in 2006 “[t]he usual, customary and reasonable charges of [UAB Hospital] for inpatient or outpatient services in effect on the 1st day of January, 2006.” More specifically, the Participating Agreement provided:

“It is hereby agreed to by the parties that [UAB Hospital] shall accept as full reimbursement for all medically necessary and authorized Hospital inpatient services in authorized workers’ compensation cases a maximum amount not to exceed the inpatient per diem prevailing rate of reimbursement for the following types of cases: ... All Other Cases, Except Transplants, shall be a prospective payment of $3,600 for day one (1) and day two (2), and a prospective payment not to exceed $3,200 for day three (3) and all following inpatient days. [UAB Hospital] agrees to bill its billed charges for medically necessary authorized inpatient services, but agrees to accept as maximum reimbursement for inpatient days the lesser of total charges or the heretofore agreed upon inpatient per diem prevailing rate of reimbursement. If the total per diem prevailing rate of reimbursement is less than 63 percent (%) of the total allowed charges, then the payment shall be 63 percent (%) of total allowed charges.”

(Underlining in original.) The Participating Agreement further provided that

“[i]t is expressly understood that the self-insured employer and insurance carrier may perform ... bill screening for the determination of allowed charges for inpatient and/or outpatient services rendered in an accepted workers’ compensation claim pursuant to Code of Alabama, 1975, § 25-5-293(g). Utilization review and bill screening are defined in Code of Alabama, 1975, § 25-5-1 and Department of Industrial Relations Administrative Code Rule 480-5-5-.02.”
Our supreme court has stated:
“General contract law requires a court to enforce an unambiguous, lawful contract, as it is written. A court may not make a new contract for the parties or rewrite their contract under the guise of construing it....
“Parties to a contract are bound by pertinent references therein to outside facts and documents. ‘Other writings, or matters contained therein, which are referred to in a written contract may be regarded as incorporated by the reference as a part of the contract and[,] therefore, may properly be considered in the construction of the contract.’ 17A Am.Jur.2d Contracts § 400 (1991)....
“When interpreting a contract, a court should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state. Words used in a contract will be given their ordinary, plain, or natural meaning where nothing appears to show they were used in a different sense or that they have a technical meaning.”

Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 35-36 (Ala.1998) (some citations omitted).

Relying on the foregoing principles of contract construction, we conclude that UAB Hospital agreed with ADIR in the Participating Agreement to accept as payment the lesser of its billed charges or the amount calculated using the applicable per diem rate. If the per diem rate became applicable, the amount calculated using that per diem rate was to be the maximum amount payable to UAB Hospital unless, under the per diem rate method, UAB Hospital would receive less than 63% of the total “allowed charges.” In that event, the Participating Agreement authorized UAB Hospital to receive payment of 63% of its total “allowed charges.” The parties refer to this last clause as a “stop-loss provision,” which a UAB Hospital witness testified was included in the Participating Agreement to ensure that, in catastrophic cases, UAB Hospital would receive payment of at least a majority of its total fees.

The Participating Agreement did not define “allowed charges,” but it indicated that “allowed charges” were to be determined by “bill screening” as defined in the Alabama Workers’ Compensation Act and the relevant ADIR regulations. Section 25-5-1(20), Ala.Code 1975, and Rule 480-5-5-.02(13), Ala. Admin. Code (ADIR), define “bill screening” as:

“[t]he evaluation and adjudication of provider bills for appropriateness of reimbursement relative to medical necessity and prevailing rates of reimbursement, duplicate charges, unbundling of charges, relativeness of services to injury or illness, necessity of assistant surgeons, adjudication of multiple procedures, number of modalities, global procedures, and any other prevailing adjudication issues that may apply.”

By incorporating by reference the foregoing terms, the parties to the Participating Agreement intended that “allowed charges” would be those charges properly billed by UAB Hospital as established by an appropriate bill screening. Excessive charges due to “unbundling,” as succinctly and correctly defined by the trial court above, would not be included in “allowed charges.” Therefore, we conclude that Steward was within its rights to screen the UAB Hospital bill for “unbundling” of charges.

With that said, we conclude that the burden was on Steward, as the party seeking to avoid payment, to prove at trial that UAB Hospital had “unbundled” its fees so as to charge more than the prevailing rate of reimbursement. Steward attempted to satisfy that burden through the testimony of two witnesses, a former Avizent bill-screening supervisor, and Dr. David Perl-man, an expert witness on bill screening, both of whom testified that UAB Hospital’s bill had itemized charges that should have already been included in a global charge. However, the trial court rejected their testimony, finding that, in fact, no preset global charges existed from which UAB Hospital could have unbundled its fees.

We review pure factual findings in workers’ compensation cases under the substantial-evidence rule. See Ala.Code 1975, § 25-5-81(e)(2). After a thorough review of the testimony of UAB Hospital’s witnesses, we find the trial court had ample evidence before it to support its factual conclusion that UAB Hospital did not un-bundle its charges. Therefore, we conclude that the trial court did not commit reversible error in concluding that Steward improperly disallowed charges for “un-bundling.” In reaching our holding, we reject Steward’s contention that the trial court prohibited it from bill screening for unbundling. Rather, reading the trial court’s judgment as a whole, the trial court simply concluded that no unbundling could have possibly occurred based on the manner in which UAB Hospital billed its charges.

For the foregoing reasons, we agree with Steward that the Workers’ Compensation Act and the Participating Agreement authorize bill screenings of UAB Hospital’s bill for a determination of allowed charges. However, such a bill screening must be appropriate in light of the reimbursement methodology made applicable by the Act to participating hospitals such as UAB Hospital. The bill screening conducted in this case was not appropriately conducted, and, as a result, Steward improperly reduced its payment to UAB Hospital. We, therefore, affirm the judgment of the trial court on the grounds stated in this opinion.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . UAB Hospital issued a statement of "total charges” amounting to $246,779.04; however, UAB Hospital discounted the bill pursuant to its workers’ compensation payment agreement with the Alabama Department of Industrial Relations, which will be detailed infra, and a Preferred Provider Organization agreement with Steward’s third-party administrator.

      . At the time, Attenta, Inc., was acting as Steward's third-party administrator, but At-tenta has since merged with another company, and the entity acting as Steward's third-party workers' compensation administrator has been "rebranded” as Avizent.

      . Pursuant to Ala.Code 1975, § 25-5-77(h), a billing dispute between a provider and an employer or insurance carrier must, as an initial matter, be submitted to ADIR. See also University of South Alabama v. P.J. Lumber Co., 990 So.2d 369 (Ala.Civ.App.2007).

      . UAB Hospital also sought imposition of the 10% penalty for late payment found in Ala. Code 1975, § 25-5-77(h). The trial court denied that claim.

      . UAB Hospital initially claimed that Avizent had underpaid it by $36,517.55, but it subsequently reduced that amount to $36,450.08. At trial, UAB Hospital proved a slightly different amount — $37,845.69—as the underpayment.

        . A "Chargemaster” is a list of fees a hospital maintains that sets out the cost of each service the hospital provides. According to UAB Hospital witnesses, every bill issued by UAB Hospital is calculated based on the Charge-master in place on the date of the service.

      . See Ala.Code 1975, § 25-5-1(16) (defining "participating hospitals” as "[t]hose hospitals that have a negotiated rate of reimbursement or payment with the Department of Industrial Relations”).

      . The trial court noted that Steward had attempted to prove not only that UAB Hospital was guilty of unbundling, but also that UAB Hospital had charged duplicate fees. The trial court basically concluded that Steward was estopped from asserting any grounds for denying payment other than those presented to UAB Hospital at the time of and preceding the ADIR review. Steward does not appeal that aspect of the trial court’s judgment, so we express no opinion as to its correctness.

      . Although the complaint is styled as presenting an action under the Declaratory Judgment Act, Ala.Code 1975, § 6-6-220 et seq., the action actually arose under Ala.Code 1975, § 25-5-77(i)(4) (authorizing a party to a medical dispute that remains unresolved after a review of medical services by ADIR to petition the court for relief).


source: Caselaw Access Project

author: PER CURIAM. SHAW, Judge,

license: Public Domain

text:
    Ex parte Gerald Patrick Lewis (In re: STATE of Alabama v. Gerald Patrick LEWIS).
    CR-07-0022.
    Court of Criminal Appeals of Alabama.
    July 25, 2008.

      William Robert Montross, Jr., Atlanta, Georgia, for petitioner.
    Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for respondent.
   PER CURIAM.

The appellant, Gerald Patrick Lewis, filed this petition for a writ of mandamus directing the Honorable J. Langford Floyd, a Baldwin County Circuit Judge, to set aside his rulings related to discovery in Lewis’s postconviction proceeding.

In February 2000, Lewis was convicted of the murder of Misty MeGugin made capital because it occurred during the course of a kidnapping, a rape, and a robbery. Lewis was also convicted of two counts of attempted murder, two counts of attempted kidnapping, two counts of attempted rape, and two counts of robbery for offenses against Stephanie Grayson and Ashley Bitowf. The jury, by a vote of 10 to 2, recommended that Lewis be sentenced to death on the capital-murder conviction. The circuit court sentenced Lewis to death. Lewis’s convictions and his death sentence were affirmed on direct appeal. See Lewis v. State, 889 So.2d 623 (Ala.Crim.App.2003). We issued the certificate of judgment on April 30, 2004.

On April 25, 2005, Lewis filed a postcon-viction petition pursuant to Rule 32, Ala. R.Crim.P., attacking his capital-murder conviction and sentence of death. Lewis filed his first discovery motion in August 2005 and filed a “Superceding Motion for Discovery” in June 2006. In the motions Lewis requested that he be given access to his Department of Corrections (“DOC”) records maintained by the States of Alabama, Georgia, and Massachusetts; jail records from various facilities in Alabama, Georgia, and Massachusetts in which he had been incarcerated; mental-health records maintained by the States of Alabama, Georgia, and Massachusetts; Board of Pardons and Paroles records maintained in Alabama and Georgia; Department of Human Resource records maintained by the States of Alabama, Georgia, and Massachusetts; Youth Services Department records from Massachusetts and Georgia; police and sheriffs department records from many jurisdictions in Alabama, Georgia, and Massachusetts; the Mobile County District Attorney’s office files related to his arrest and the investigation of the offenses; records from the United States Department of Human Services and the Social Security Administration; and his military records.

In June 2006, while the discovery motions were still pending Lewis filed 14 requests for subpoenas duces tecum. One of those subpoenas was directed to the Mobile County District Attorney’s Office. The State moved to quash the subpoena. On September 20, 2007, after entertaining numerous motions on this issue Judge Floyd quashed the subpoena directed to the Mobile County District Attorney’s Office. At this same time Judge Floyd also directed that the State be given access to Lewis’s trial attorney’s entire case file.

Initially, we note that this case is correctly before this Court by way of mandamus petition. See Ex parte Land, 775 So.2d 847 (Ala.2000).

For a writ of mandamus to issue the petitioner must show: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996).

In Ex parte Land, the Alabama Supreme Court set out the standard for discovery in postconviction proceedings and stated:

“We agree with the Court of Criminal Appeals that ‘good cause’ is the appropriate standard by which to judge post-conviction discovery motions. In fact, other courts have adopted a similar ‘good-cause’ or ‘good-reason’ standard for the postconviction discovery process. See [State v.J Marshall, [148 N.J. 89, 690 A.2d 1 (1997) ]; State v. Lewis, 656 So.2d 1248 (Fla.1994); People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 121 Ill.Dec. 937, 526 N.E.2d 131 (1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process. See Fitzgerald, supra, 123 Ill.2d at 183, 121 Ill.Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey’s Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are bound by our own rule that ‘an evidentiary hearing must be held on a [petition for postcon-viction relief] which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief.’ Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985).
“We emphasize that this holding— that postconviction discovery motions are to be judged by a good-cause standard — does not automatically allow discovery under Rule 32, Ala. R.Crim. P., and that it does not expand the discovery procedures within Rule 32.4. Accord Lewis, supra, 656 So.2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida’s rules relating to postconviction procedure, which are similar to ours. By adopting this standard, we are only recognizing that a trial court, upon a petitioner’s showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief. In addition, we caution that postconviction discovery does not provide a petitioner with a right to ‘fish’ through official files and that it ‘is not a device for investigating possible claims, but a means of vindicating actual claims.’ People v. Gonzalez, 51 Cal.3d 1179, 1260, 800 P.2d 1159, 1206, 275 Cal.Rptr. 729, 776 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 85 (1991). Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief. Cf. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986) (‘a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief), cert. denied, 482 U.S. 918, 919, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala. R.Crim. P., which states:
“ ‘The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’
“That having been said, we must determine whether Land presented the trial court with good cause for ordering the requested discovery. To do that, we must evaluate Land’s basis for the relief requested in his postconviction petition and determine whether his claims are facially meritorious. Only after making that examination and determination can we determine whether Land has shown good cause.”

775 So.2d at 852-53 (footnote omitted).

I.

Lewis argues that the circuit court abused its discretion in allowing the State access to his trial attorney’s entire file. Lewis agrees that he has waived his attorney-client privilege, in part, by raising various claims of ineffective assistance of counsel. However, he contends that the circuit court erroneously concluded that the scope of his waiver included the disclosure of his trial attorney’s entire case file.

Rule 1.6, Alabama Rules of Professional Conduct, addresses the attorney-client privilege; it provides:

“(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
“(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
“(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
“(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

Rule 502, AIa.R.Evid., specifically provides, in pertinent part:

“(d) Exceptions. There is no privilege under this rule:
“(3) Breach of Duty by an Attorney or Client. As to a communication relevant to an issue of breach of duty by an attorney to the client or by a client to the client’s attorney.”

The Advisory Committee’s Notes to Rule 502 state:

“While no prior Alabama cases specifically state this exclusion, it is consistent with those cases holding that the client may waive the privilege. Dewberry v. Bank of Standing Rock, 227 Ala. 484, 494, 150 So. 463, 471 (1933). Consistent with those cases, the client may be viewed as waiving the privilege either by breach of duty to the attorney or by charging that the attorney breached the duty owed to the client.”

The United States Court of Appeals for the Eleventh Circuit in Johnson v. Alabama, 256 F.3d 1156 (11th Cir.2001), recognized that the attorney-client privilege is waived in a habeas corpus proceeding when a defendant asserts a claim of ineffective assistance of counsel. The court stated:

“[W]hen a habeas corpus petitioner such as Johnson launches an attack on the reasonableness of his attorney’s strategy in conjunction with a claim of ineffective assistant of counsel, he puts at issue his communications with counsel relating to those strategic choices. As Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] itself emphasizes, the ‘reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, ... on information supplied by the defendant... [and]... inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s ... litigation decisions.’ 466 U.S. at 691, 104 S.Ct. at 2066; see also Chandler [v. United States ], 218 F.3d [1305] at 1318-19 [ (11th Cir.2000) ] (‘Because the reasonableness of counsel’s acts ... depends critically upon information supplied by the [petitioner] or the [petitioner’s] own statement or actions, evidence of a petitioner’s statements and acts in dealing with counsel is highly relevant to ineffective assistance claims.’ (citations and internal quotation marks omitted)). Although the precise boundaries of the waiver will vary from case to case, and in many instances will require careful evaluation by the district court, there should be no confusion that a ha-beas corpus petitioner alleging that his counsel made unreasonable strategic decision waives any claim of privilege over the contents of communications with counsel relevant to assessing the reasonableness of those decisions in the circumstances.”

256 F.3d at 1179. See also State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000) (“To defend against ineffective assistance of counsel allegations, the State must rely on information provided by defendant to trial counsel, as well as defendant’s thoughts, concerns, and demean- or.”).

“[Wjhere the petitioner who has alleged unprofessional conduct on the part of his former trial defense counsel testifies, or otherwise introduces evidence to establish the same, then a reinvocation of the attorney-client privilege operates to place the respondent in an untenable position. The law allows the privilege to be a shield, but not a sword. ‘[T]he holder of the privilege may preserve the confidentiality of the privileged communications by choosing to abandon the claim that gives rise to the waiver condition. Cf. Lyons v. Johnson, 415 F.2d 540, 541-42 (9th Cir.1969) (affirming dismissal of plaintiffs complaint after she persisted in hiding behind the privilege against self-incrimination by refusing to answer any deposition questions or to submit to discovery).’ Bittaker v. Woodford, 331 F.3d 715, 721 (9th Cir.2003).”

Breton v. Commissioner of Correction, 49 Conn.Supp. 592, 601, 899 A.2d 747, 753 (2006).

Our research shows that the overwhelming majority of courts that have addressed this issue hold that the waiver of the attorney-client privilege should be narrowly applied. The Georgia Supreme Court in Waldrip v. Head, 272 Ga. 572, 532 S.E.2d 380 (2000), stated:

“Although we have never expressly addressed the scope of the waiver of the attorney-client privilege when a habeas petitioner asserts an ineffective assistance of counsel claim, we have previously limited any implied waiver of the attorney-client privilege. In Felts v. State, [244 Ga. 503, 260 S.E.2d 887 (1979),] the defendant argued that his attorney-client privilege was violated when the state impeached him concerning his testimony at a previous trial that he had lied to his attorney. We held that Felts had waived his privilege concerning his lie that someone gave him the murder weapon at the scene of the shooting by testifying without objection about the matter at his earlier trial, but limited the waiver to that statement. Similarly, when a habeas petitioner claimed that she was not informed of the consequences of her guilty plea, her attorney was permitted to testify concerning the information he gave her regarding the plea. The rationale for these decisions is that the client waives the privilege to the extent necessary to allow the attorney to defend his or her own conduct against the charges of misconduct.
“Other states addressing the waiver issue provide persuasive authority for a rule limiting waiver of any privilege to communications related to the specific claims on ineffectiveness. When faced with the same issue, the North Carolina Supreme Court held that the defendant waived the benefits of both the attorney-client privilege and work product doctrine on matters relevant to the allegations of ineffective assistance of counsel. Despite the defendant’s broad-ranging attack on counsel’s representation at trial, that court concluded that the trial court exceeded its authority in directing the defendant to provide the state access to all files related to the case.
“Based on this persuasive authority, our prior decisions, and the reason for finding an implied waiver, we reject the state’s contention that the filing of an ineffectiveness claim is an absolute waiver that entitles it to the complete file of former trial and appellate counsel. Instead, we hold that a habeas petitioner who asserts a claim of ineffective assistance of counsel makes a limited waiver of the attorney-client privilege and work product doctrine and the state is entitled only to counsel’s documents and files relevant to the specific allegations of ineffectiveness.”

272 Ga. at 578-79, 532 S.E.2d at 387-88. See also State v. Taylor, 327 N.C. 147, 152, 393 S.E.2d 801, 805 (1990) (“By alleging in his amended motion for appropriate relief that his court-appointed attorney ... rendered ineffective assistance of counsel during the trial and direct appeal of these cases, the defendant waived the benefits of both the attorney-client privilege and the work product privilege, but only with respect to matters relevant to his allegations of ineffective assistance of counsel.”); Petition of Dean, 142 N.H. 889, 890-91, 711 A.2d 257, 258 (1998) (“We hold that claims of ineffective assistance of counsel, whether brought in a motion for new trial or in a habeas corpus proceeding, constitute a waiver of the attorney-client privilege to the extent relevant to the ineffectiveness claim, the waiver is a limited one.”); United Jersey Bank v. Wolosoff, 196 N.J.Super. 553, 567 n. 3, 483 A.2d 821, 828 n. 3 (1984) (“[0]ur law compelled disclosure of communications otherwise protected by the attorney-client privilege to the extent that they were pertinent to the question of reasonable reliance.... This limited disclosure, however, extends no further than that particular subject matter.”); State v. Buckner, 351 N.C. 401, 411-12, 527 S.E.2d 307, 314 (2000) (“If the superior court orders disclosure, and there is disagreement about whether the order covers certain questionable documents or communications, the superior court must conduct an in camera review to determine the extent of the order as to those documents or communications.”). Compare Reed v. State, 640 So.2d 1094, 1097 (Fla.1994) (waiver of the attorney-client privilege is broad when claim of ineffective assistance of counsel is raised and allows the state to inspect the trial attorney’s entire file.).

We join the majority of other jurisdictions that have addressed this issue and hold that when a petitioner raises a claim of ineffective assistance of counsel in a postconviction proceeding he waives the attorney-client privilege “only with respect to matters relevant to his allegations of ineffective assistance of counsel.” State v. Taylor, 327 N.C. at 152, 393 S.E.2d at 805. The extent of the waiver must, by necessity, depend on the scope of the ineffective-assistance-of-counsel claims that are raised in the postconviction petition. Moreover, the circuit court should conduct an in camera inspection of the attorney’s file to determine whether any portions of the file are not related to the ineffective-assistance claims that are raised in the postconviction petition. In this case Lewis raised a multitude of claims concerning the performance of his trial attorney in his 309-page petition; thus, his waiver is broader than a petitioner who asserts only one claim of ineffective-assistance-of-counsel.

II.

Lewis also argues that the circuit court erred in quashing the subpoena duces tecum directed to the Mobile County District Attorney’s Office. Lewis was given access to the Baldwin County District Attorney’s file on the case — the district attorney for the county in which he was prosecuted and convicted of murdering Misty McGugin. However, Lewis was first arrested in Mobile County for murdering Kathleen Bracken. When he was questioned by Mobile police he told police that he had information concerning the murder of Misty McGugin in Baldwin County. He confessed to murdering McGugin. In the Rule 32 proceeding, Lewis sought discovery of the Mobile County District Attorney’s Office file related to the Bracken murder. The State argues that a subpoena duces tecum has no application to postconviction proceedings.

Rule 17.3, Ala.R.Crim.P., specifically addresses the issuance of subpoenas duces tecum and provides:

“(a) Production of Books, Papers, etc. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or other objects which may be designated therein.
“(b) Production Prior to Trial and for Inspection. The court may direct that books, papers, documents, or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence. Upon their production, the court may permit the parties and their attorneys to inspect them, or portions thereof.”

The Committee Comments to this Rule state:

“This rule is not intended to be a discovery device because Rule 16 provides for discovery. This rule is to be used to inspect evidence held by witnesses and to require its production at trial or prior to trial.”

In State v. Reynolds, 819 So.2d 72 (Ala.Crim.App.1999) (on return to remand), we discussed the distinction between discovery and a subpoena duces tecum and stated:

“In People v. Morrison, 148 Misc.2d 61, 66-67, 559 N.Y.S.2d 1013, 1017-18 (N.Y.City Crim.Ct.1990), the court discussed the difference between a subpoena duces tecum and discovery:
“ ‘A fundamental distinction exists between a defendant’s right to discovery ... and a defendant’s right to compel the production of evidence by subpoena .... The right to discovery is the right to receive information and documents from the prosecution and its agents concerning the case. A defendant’s right to discovery is governed and limited by statute [in Alabama, by rule] .... The specific material that is required to be disclosed is specified in the statute and the timing of its disclosure is, likewise, governed by statute.
“ ‘The right to compulsory process, on the other hand, is the right to compel witnesses to come into court pursuant to subpoena and give testimony or produce documentary or other physical evidence. The right to compulsory process has its roots in constitutional principles which recognize that a defendant must be able to compel the production of evidence in the proceedings relating to the case in order to present a defense to the charges if he or she chooses to do so. However, based on constitutional analysis set forth above and decisional law, the right to compulsory process is not an unlimited and unrestricted right to compel the production of any documents sought by a defendant. Rather, it is a restricted right, the exercise of which must satisfy certain relevancy and evidentiary standards and which is subject to other procedures for obtaining the material sought.
“ ‘... The right to compel material pursuant to subpoena is, therefore, limited to the compulsion of “evidence” and is not a right to compel the production of documents that refer to evidence or that provide leads that will assist in the identification of evidence or to ascertain the existence of witnesses or evidence.’

“Alabama courts have often said that a subpoena duces tecum is not a method of discovery. As this Court stated in Sale v. State, 570 So.2d 862, 863 (Ala.Cr.App.1990),

“ ‘It appears to this Court that the defendant was seeking to use the subpoenas duces tecum as a method of discovery. In Alabama, a subpoena duces tecum does not “embrace[ ] discovery as one of its purposes,” Ex parte Anniston Personal Loans, Inc., 266 Ala. 356, 359, 96 So.2d 627, 630 (1957); Williams v. State, 383 So.2d 547, 559 (Ala.Cr.App.1979), affirmed, 383 So.2d 564 (Ala.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980), and should not be employed as a “fishing expedition,” Ex parte Darring, 242 Ala. 621, 624, 7 So.2d 564, 566 (1942).’

“Other states have followed this rationale. See State v. Watson, 726 A.2d 214 (Me.1999); Decrosta v. State Police Laboratory, 182 A.D.2d 930, 581 N.Y.S.2d 938 (N.Y.App.Div.1992); People v. Warden, 175 A.D.2d 821, 572 N.Y.S.2d 939 (N.Y.App.Div.1991); People v. Ramirez, 129 Misc.2d 112, 492 N.Y.S.2d 906 (N.Y.Sup.Ct.1985); People v. Cannon, 127 Ill.App.3d 663, 469 N.E.2d 375, 82 Ill.Dec. 841 (1984).

“Here, Reynolds attempted to use the subpoena duces tecum as a means to search the victim’s files for any possible exculpatory evidence. ‘A subpoena duces tecum may not be used “in-the hope of finding something helpful to [the] defense.” ’ People v. Magliore, 178 Misc.2d 489, 493, 679 N.Y.S.2d 267, 270 (N.Y.City Crim.Ct.1998), quoting Decrosta, 182 A.D.2d at 931, 581 N.Y.S.2d at 939. ‘Generally, a subpoena duces te-cum may not be used as a fishing expedition for the purpose of discovery or to ascertain the existence of evidence....’ Decrosta, 182 A.D.2d at 931, 581 N.Y.S.2d at 939.’ ”

819 So.2d at 78-79.

We agree with the State that based on Alabama law a subpoena duces tecum would have no application to discovery in postconviction proceedings. The circuit court did not abuse its discretion in denying the request for a subpoena duces te-cum directed to the Mobile County District Attorney’s Office.

Moreover, there is a pending discovery motion that relates to this same matter. Apparently, the circuit court has yet to dispose of that motion. Therefore, any action by this Court as it relates to this pending motion would be premature. If that discovery motion is denied Lewis may then file another petition for a writ of mandamus with this Court.

Accordingly, this petition for a writ of mandamus is granted in part. As discussed in Part I of this opinion the circuit court is directed to conduct an in camera inspection of Lewis’s trial attorney’s case file to determine the extent of the file that should be disclosed to the State of Alabama. Any other relief requested in this petition is denied.

PETITION GRANTED IN PART AND DENIED IN PART.

McMILLAN and WELCH, JJ., concur. SHAW, J., concurs in part and concurs in the result, with opinion, which WISE, J., joins. BASCHAB, P.J., recuses herself.

SHAW, Judge,

concurring in part and concurring in the result.

Although I agree with most of the analysis in Part I of the main opinion, I note that, in my view, this Court’s holding is dictated by State v. Click, 768 So.2d 417, 421 (Ala.Crim.App.1999), in which we held that “[a] postconviction petitioner who raises a Sixth Amendment claim of ineffective assistance of counsel ‘waives the attorney-client privilege as to matters reasonably related to the claim of inadequate representation.’ ” In Click, this Court, quoting Charles W. Gamble, McElroy’s Alabama Evidence, § 394.01(3) (5th ed.1996), went on to state:

“ ‘If the client charges the attorney with misconduct, the privilege is lifted insofar as is necessary to enable the attorney to combat the charge. This would necessarily mean that the client could not base a lawsuit against the attorney upon the negligence of the attorney’s advice and then object when the attorney attempts to testify as to the attorney’s own version of what was said. This would open the door, of course, to only so much of the privileged matter that is relevant and necessary to the attorney’s defense.” ’

768 So.2d at 422. Therefore, I concur in the result as to part I.

I concur as to Part II.

WISE, J., concurs.

      . Lewis filed two mandamus petitions on the same date. We have consolidated those petitions.

      . Apparently, the bulk of the discovery has already been completed, and this petition concerns only the circuit court’s rulings made on September 20, 2007.

      . A federal habeas corpus proceeding is similar to our Rule 32, Ala.R.Crim.P., proceeding.

      . The majority view is consistent with our holding in State v. Click, 768 So.2d 417, 421 (Ala.Crim.App.1999), where we stated: "A postconviction petitioner who raises a Sixth Amendment claim of ineffective assistance of counsel 'waives the attorney-client privilege as to matters reasonably related to the claim of inadequate representation.' ”

      . Lewis asserted approximately 60 different claims of ineffective assistance of counsel.


author: BASCHAB, Presiding Judge.

text:
    Robert Derron RILEY v. STATE of Alabama.
    CR-07-0828.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.
    Paul W. Brunson, Jr., Clayton, for appellant.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Robert Derron Riley, was convicted of second-degree assault, a violation of § 13A-6-21(a)(2), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of thirty-five years in prison. See § 13A-5-9(c)(l), Ala. Code 1975. The appellant filed a “Motion for Judgment of Acquittal or, in the Alternative, for New Trial or Arrest of Judgment,” which the trial court denied after conducting a hearing. This appeal followed.

The appellant argues that his trial counsel rendered ineffective assistance in several instances. He raised several ineffective-assistance-of-counsel allegations during the hearing on his motion for a new trial. However, the trial court did not make any findings of fact regarding those allegations.

Because the trial court is in the best position to make findings of fact regarding the appellant’s ineffective-assistance allegations, we remand this case to that court with instructions that it make specific, written findings of fact as to each of the allegations. See Vinnie v. State, 866 So.2d 1175 (Ala.Crim.App.2002) (remanding for specific findings of fact on ineffective-assistance-of-counsel allegations raised in a motion for a new trial); Stallings v. State, 793 So.2d 867 (Ala.Crim.App.2000) (remanding for specific findings of fact on ineffective-assistance-of-counsel allegations raised in a motion for a new trial); Tubbs v. State, 753 So.2d 1209 (Ala.Crim.App.1999) (remanding for specific findings of fact on ineffective-assistance-of-counsel allegations raised in a motion for a new trial). On remand, the trial court may order the State to respond to the appellant’s specific allegations and/or may conduct an eviden-tiary hearing on those allegations. If the trial court determines that the appellant is entitled to relief, it may order such relief. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the trial court’s specific, written findings of fact; a copy of the appellant’s records from Family and Community Medicine Associates that were introduced during the hearing on the motion for a new trial; a copy of the State’s response, if any; exhibits introduced during the remand proceedings, if any; and a transcript of the remand proceedings, if any, conducted by the trial court.

REMANDED WITH INSTRUCTIONS.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

      . The appellant was also convicted of second-degree criminal mischief in case number CC-07-69. However, he did not appeal that conviction.

      . We also note that, during the hearing on the motion for a new trial, counsel provided the court with a copy of the appellant's records from Family and Community Medicine Associates. However, the record on appeal does not include those records.


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Mont BEAN, Appellee.
    No. 2D08-5542.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.
    Rehearing Denied March 2, 2010.
    Bill McCollum, Attorney General, Tallahassee, Helene S. Parnés and Sarah Macks, Assistant Attorneys General, Tampa, for Appellant.
    Frances Martinez of Escobar, Ramirez & Associates, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

The State charged Mont Bean in one information with trafficking in oxycodone and in another information with multiple counts of obtaining drugs from a physician by withholding information. He filed motions to suppress the evidence obtained from a pharmacy and other medical sources. The trial court granted these motions and the State appealed. We reverse and remand for further proceedings.

This suppression proceeding is unusual in several respects. The trial court had considered a similar motion to suppress in another case a few days before the hearing on these motions. The trial court believed that the ruling in the earlier case controlled in this case. As a result, the trial court allowed only limited arguments and required the parties to provide brief stipulations about the facts instead of requiring the parties to present the usual evidentia-ry hearing. The case that the trial court heard a few days earlier, State v. Fernandez, 36 So.3d 120 (Fla. 2d DCA 2010), was appealed to this court. A separate panel of judges has reversed that order. We likewise reverse this order.

As explained below, this court concludes that the suppression issue presented to the trial court is more nuanced than the parties and the trial court realized. At least for some of the evidence that Mr. Bean wishes to suppress, his legal reasoning is based on factual assumptions that are clearly not supported by the evidence in this case. Both sides are seeking broader holdings from this court than the circumstances of the case warrant. We conclude that it is better to reverse on narrow procedural grounds without prejudice to the parties’ rights to pursue these complex issues at a more complete hearing on remand.

I. The Facts as Best as They Can Be Divined from this Record

From our limited record, it appears that the State claims that Mr. Bean went to a pharmacy inside a grocery store in Tampa, Florida. He presented the pharmacist with a “prescription” for 180 oxycodone tablets. The prescription appeared to be signed by a local doctor, but the pharmacist was suspicious about the authenticity of the signature. The pharmacist was unable to reach the doctor and decided to fill the prescription. After he had given Mr. Bean the tablets, he talked to someone in the doctor’s office and was informed that the doctor had not signed such a prescription for Mr. Bean.

The pharmacist called the Tampa Police Department and reported a possible crime. The police sent a detective to the pharmacy. The pharmacist voluntarily provided the detective with the allegedly forged prescription and positively identified Mr. Bean from a photograph. The evidence obtained in this part of the investigation was obtained without a subpoena or a warrant and resulted in the first information charging Mr. Bean with trafficking in oxy-codone.

The detective continued with his investigation, checking with various medical clinics and pharmacies in the neighborhood. Our record provides very limited information about this additional investigation, but it appears that additional evidence was obtained without a warrant or subpoena. That evidence resulted in the second information, charging Mr. Bean with multiple counts of obtaining drugs from a physician by withholding information. It is worth emphasizing that Mr. Bean has merely been charged with these offenses and is presumed innocent at this time.

II. Difficulties with Mr. Bean’s Theory

After the informations were filed, Mr. Bean moved to suppress the evidence obtained from the pharmacy in the grocery store and the evidence obtained from other medical sources. Both motions claim that the evidence was obtained in violation of section 456.057(7)(a)(3), Florida Statutes (2006). Section 456.057 regulates “health care practitioner[s]” who have “[ojwnership and control of patient records.” Subsection (7) states:

Except as otherwise provided [ ], ... records may not be furnished to ... any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In 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.

It is Mr. Bean’s theory that the detective’s investigation prior to his arrest and prior to the filing of the information could be undertaken only with the aid of a subpoena issued by a court of competent jurisdiction and with proper notice to him. Interestingly, neither motion claims that the evidence was obtained in violation of the Fourth Amendment or that it was obtained without a warrant. Mr. Bean is arguing that the evidence must be suppressed because the pharmacist volunteered the evidence to the detective in violation of a statute that he alleges regulates the pharmacist.

We note that, at least as it relates to the allegedly forged prescription obtained from the pharmacist at the grocery store, a forged prescription is not a real medical record; it is a forged document. Moreover, pharmacists are expressly excluded from the definition of “health care practitioner,” although they may be regulated as maintainers of records under this regulatory statute. See § 456.057(2)(b). Thus, there are substantial questions about the theory for suppression that Mr. Bean presents in his written motion, but these are not the questions raised by the State at the suppression hearing.

At the hearing and on appeal, Mr. Bean has not extensively argued his theory under section 456.057. Instead, he argues a similar theory under section 395.3025, Florida Statutes (2006). That statute requires a “licensed facility” to maintain the confidentiality of patient records and to provide them in a criminal action only upon the issuance of a subpoena. A pharmacy inside a grocery store does not appear to be licensed under chapter 395 because it is not a “hospital, ambulatory surgical center, or mobile surgical facility.” § 395.002(17).

Finally, Mr. Bean’s motion did not expressly raise a constitutional violation under the Fourth Amendment or under Article I, sections 12 or 23, of the Florida Constitution. At least as to the allegedly forged prescription given to the detective at the pharmacy in the grocery store, this omission is logical because there is no evidence that the detective searched anyone or seized anything; the pharmacist who called police to report this possible crime appears to have willingly, if not eagerly, given the document to the detective.

Section 456.057 does not contain a statutory exclusionary rule. Cfi 934.03, Fla. Stat. (2006) (excluding wiretap recordings obtained in violation of chapter 934). It appears likely that Mr. Bean has shifted his analysis to section 395.3025 because of the supreme court’s decision in State v. Johnson, 814 So.2d 390 (Fla.2002), which discussed the application of the exclusionary rule to a statutory violation of section 395.3025.

In Johnson,, the court considered a case in which the State used an investigative subpoena to compel a hospital to provide blood alcohol records for use in a DUI manslaughter case. Id. at 392-93. We are not entirely convinced that the circumstances in Johnson equate with a pharmacist’s voluntarily giving a piece of paper to a detective that the pharmacist believes to be a forged prescription. We do not have enough information in our record to know how Johnson might apply to the records obtained in the second half of the investigation in this case. Moreover, Johnson actually held that the blood alcohol records would be admissible if the State failed to comply with the statute in good faith. Id. at 394. Good faith was not an issue considered by the trial court in this case.

Finally, the Johnson opinion was a per curiam opinion in which Justice Pariente added a concurring opinion and three justices concurred in result only. Id. Given more recent discussions in the U.S. Supreme Court suggesting limitations on the exclusionary rule, and the constitutional connection between Article 12 and the Fourth Amendment, we cannot tell from this record how a Florida court might now be required to rule on the issue of the use of the exclusionary rule in a case such as this one.

III. Difficulties with the State’s Theory

The State has not addressed many of the concerns that this court has raised in the preceding section. Instead, it primarily makes two arguments, neither of which is entirely satisfactory to this court. First, it argues that Mr. Bean lacks “standing” to make these arguments. It maintains that he has no expectation of privacy or posses-sory interest in forged documents. The threshold problem with this argument is that the trial court did not find and was not asked to determine whether some or all of these records were forged. Even though everyone discussed the likelihood that the first prescription was not a real medical record, the significance of that possibility seemed to evade everyone at the abbreviated suppression hearing.

Second, the State argues that the statutes relied upon by Mr. Bean are trumped by the authority given to the State in section 893.07. That statute generally requires every person who engages in the dispensing of controlled substances to keep records “available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” § 893.07(4). The State claims that this statute gives the police the right, without any suspicion whatsoever and without a warrant or subpoena, to peruse the records of any pharmacy, examining the records of any and all clients, for evidence that someone may have obtained an illegal prescription for a controlled substance. Suffice it to say, this interpretation of the statute gives us pause.

The fact that the legislature requires pharmacies to keep records available for review and copying should obviously reduce. a person’s expectation of privacy about prescriptions that are filled at pharmacies. In Gettel v. State, 449 So.2d 413, 414 (Fla. 2d DCA 1984), we held in a postconviction proceeding that a lawyer for a pharmacist was not ineffective when the lawyer did not file a motion to suppress evidence of forged prescriptions. In that case, the evidence was used against the pharmacist in possession of the prescriptions and not against a customer/patient. Id. Nevertheless, the duty of the pharmacist to maintain such records for review by law enforcement does not necessarily mean that law enforcement can review and copy all such records without suspicion, a warrant, or a subpoena for use in any type of legal proceeding. We have no need to reach this issue today, and we expressly do not reach this issue.

IV. Our Narrow Ruling

The order on appeal recites that the detective “obtained Defendant’s prescriptions from a pharmacy” and makes what is probably a mixed finding of fact and law that the documents sought to be suppressed are “confidential patient records.” There is no evidence or stipulation in this record to support those determinations, and what little evidence is in the record contradicts these findings. Virtually all remaining aspects of the order collapse due to this error.

Moreover, the order purports to make rulings under the Fourth Amendment and Article I, section 12, of the Florida Constitution when those issues were not raised in Mr. Bean’s motion. It relies extensively on section 395.3025 when there is no factual basis to determine that any licensed hospital was involved in this case and that statute was not alleged as a basis for suppression. Finally, while admitting that no constitutional issue had been raised in the motion to suppress, the order makes a determination that section 893.07(4) is “overly broad” and at least implies that it is unconstitutional when that issue was not before the court.

This is not a typical suppression case in which a seizure is made without a warrant and the State has the burden to prove that it had constitutional authority to make a warrantless search and seizure. See, e.g., Riggs v. State, 918 So.2d 274 (Fla.2005) (finding that the State proved exigent circumstances existed to justify warrantless entry and search of defendant’s home); Smith v. State, 753 So.2d 713 (Fla. 2d DCA 2000) (finding that the State failed to meet its burden of proving defendant consented to warrantless search of his mouth). In this case, Mr. Bean maintains that the pharmacist or the State violated section 456.057(7)(a)(3) and that this statutory violation justified the exclusion of the evidence. We conclude that he has the initial burden to prove the application of this statute and he has failed in that burden.

Given the abbreviated nature of the hearing on the motion to suppress and the incorrect assumption of the trial court that it could resolve this matter without a full hearing, we reverse the order on appeal without prejudice to further proceedings addressing the possible suppression of this evidence.

Reversed and remanded for further proceedings.

VILLANTI and LaROSE, JJ., Concur.

      . See, e.g., Herring v. United States, - U.S. -, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (concluding that exclusionary rule did not apply when police arrested defendant based on rescinded arrest warrant); Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (concluding that exclusionary rule did not apply when police violated knock-and-announce rule when they entered defendant’s home).

      . After oral argument in this case, the First District issued its opinion in State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009). The holding in Carter is favorable to the State. In this case, we neither accept nor reject the reasoning of the First District.


author: MORRIS, Judge.

text:
    STATE of Florida, Appellant, v. Orquidea FERNANDEZ, Appellee.
    No. 2D08-5548.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    James Roman Amarosa II of Amarosa Law Firm P.A., Tampa, for Appellee.
   MORRIS, Judge.

The State appeals an order granting Orquídea Fernandez’s motion to suppress evidence in the State’s prosecution against her for six counts of fraudulently obtaining a controlled substance and five counts of trafficking in illegal drugs. Because the issue of Fernandez’s standing has not yet been addressed by the trial court, we have an inadequate record upon which to reach the central issue in this case — whether the search and seizure of the prescriptions on which the charges are based were unlawful. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Fernandez filed a motion to suppress call-in and handwritten prescriptions, statements made by employees of two pharmacies, and statements made by a particular doctor on the basis that the evidence was obtained as a result of an illegal search and seizure in violation of her right to privacy under the Fourth Amendment and the Florida Constitution. She alleged that her prescriptions, which were obtained from a pharmacy without a warrant, were medical records protected under Florida law by section 395.3025(4)(d), Florida Statutes (2007). She argued that section 893.07(4), Florida Statutes (2007), is unconstitutional as applied to the inspection and seizure of her prescriptions.

At the suppression hearing, the State presented the testimony of Detective Wayne Robinson. He testified that he received information from several people who had been arrested that Fernandez was writing and receiving prescriptions illegally from a pharmacy. During his investigation, he went to one of the pharmacies and was informed by the pharmacist that Fernandez had “[f]ive prescriptions for controlled substances that were allegedly authorized by” a particular doctor. Detective Robinson learned that Fernandez had worked for that doctor. Detective Robinson met with the doctor, who stated that he had not written the prescriptions at issue.

After the evidence was presented, the trial court stated that medical records are protected by section 395.8025(4)(d). The State responded that a prescription is not a medical record and that section 893.07(4) allows law enforcement to search and seize a prescription without a subpoena or warrant. The State also argued that there is no reasonable expectation of privacy with respect to completed prescriptions in possession of a pharmacy. The defense claimed that under section 456.057, Florida Statutes (2007), prescriptions are medical records because pharmacists maintain prescriptions. The trial court then inquired whether a fraudulent record is a medical record, but the defense did not have an answer to that question. The defense argued that no authority allows the police to violate the Fourth Amendment with respect to medical records and that section 893.07(4) is unconstitutional.

In a written order, the trial court suppressed the evidence on the basis that the prescriptions constituted confidential patient records, citing Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and section 395.3025(4). The trial court concluded that Fernandez had a reasonable expectation of privacy in the prescriptions under the Fourth Amendment and Article I, Section 12, of the Florida Constitution and that her privacy rights were violated when Detective Robinson searched the prescription records without a warrant or subpoena. The trial court concluded that section 893.07(4) does not authorize the search and seizure of prescriptions without a warrant or subpoena; rather, it provides a time limit for law enforcement to copy and inspect a patient’s records upon the issuance of either a warrant or subpoena. The trial court noted that section 893.07(4) appears overly broad and contains no checks and balances to protect a patient’s privacy, but the trial court did not rule on its constitutionality.

On appeal, the State argues that section 893.07(4) applies to the inspection and copying of prescription records and does not require a subpoena or warrant for law enforcement to access such records. The State claims that section 395.3025(4) does not apply to pharmacies. We note that the First District recently held that section 395.3025 does not apply to pharmacy records provided by the pharmacy to police during a “doctor shopping” investigation. See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009). The court held that section 893.07(4) applied and that it did not require pharmacies to “withhold such records until a warrant is presented.” Id. We do not reach the application of sections 395.3025(4) or 893.07(4) to the instant case, however, because further proceedings are necessary to determine whether Fernandez had a reasonable expectation of privacy in the prescriptions.

The State argues for the first time on appeal that due to the fraudulent nature of the prescriptions, Fernandez has no privacy right in the prescriptions. The State does not use the word standing. However, in challenging the trial court’s conclusion that the prescriptions constitute confidential patient records, the State argues on appeal that because the prescriptions were not prepared by a medical doctor or in response to a medical condition, they do not constitute prescriptions “as that term is generally understood.” The State contends that “[g]iven the fraudulent nature of the ‘prescriptions’ obtained in this case, any claimed medical right to privacy is inapplicable.” This is a standing argument that may be raised for the first time on appeal. See Hicks v. State, 929 So.2d 13, 16, 16 n. 3 (Fla. 2d DCA 2006) (noting that the term standing is used when determining whether the defendant’s constitutional rights were violated, which includes the threshold inquiry of whether the defendant has a reasonable expectation of privacy); McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003) (“Although this point was not argued by the State at the hearing on the motion, the concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal.”); State v. Lennon, 963 So.2d 765, 769 (Fla. 3d DCA 2007) (“Although not presented below by the State, the issue of standing may be properly addressed for the first time on appeal.”).

There may be merit to the State’s claim that Fernandez lacks a reasonable expectation of privacy in the prescriptions if they were not in fact authorized by the doctor. Cf. Hicks, 929 So.2d at 16 (holding that defendant had no reasonable expectation of privacy in stolen item because he did not lawfully possess it; therefore, he was not entitled to suppression of stolen item in a prosecution for offenses relating to stolen item); Lennon, 963 So.2d at 770 (same). However, because this specific issue was never argued to the trial court below, the trial court never made any specific factual findings regarding whether the prescriptions were authorized and, if so, whether Fernandez had a reasonable expectation of privacy in them. The parties should be given a chance to fully address this issue. See McCauley, 842 So.2d at 900. Accordingly, we reverse the order suppressing the evidence and remand for further proceedings. If Fernandez wishes to pursue her motion to suppress, the trial court shall hold a hearing on the issue of standing, at which time Fernandez will have the burden to establish that she had a reasonable expectation of privacy in the prescriptions. See Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Hicks, 929 So.2d at 16.

Reversed and remanded.

SILBERMAN, J., Concurs.

FULMER, CAROLYN K, Senior Judge, Concurs in result only.

      . Section 395.3025 provides in relevant part:
      (4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain but appropriate disclosure may be made without such consent to:

      (d) In 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.

      . Section 893.07 provides in relevant part:
      (4) Every inventory or record required by this chapter, including prescription records, shall be maintained:
      (a) Separately from all other records of the registrant, or
      (b) Alternatively, in the case of Schedule III, IV, or V controlled substances, in such form that information required by this chapter is readily retrievable from the ordinary business records of the registrant.
      In either case, records shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.

      . In order to be entitled to application of the exclusionary rule for a violation of section 395.3025(4), Fernandez has to show that a constitutional violation occurred. See State v. Johnson, 814 So.2d 390, 392 n. 3 (Fla.2002) ("[T]he exclusionary rule prevents the State from taking advantage of evidence obtained through a constitutional violation by excluding the use of such evidence.”).

      . As noted above, the State argued at the suppression hearing that there is no reasonable expectation of privacy with respect to completed prescriptions in possession of the pharmacy, citing Cushing v. Department of Professional Regulation, 416 So.2d 1197, 1198 (Fla. 3d DCA 1982), which held that a dentist charged administratively with improperly prescribing drugs “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and therefore may not” challenge the search of the pharmacy. We note that even though the State does not raise this specific argument on appeal, in order to establish a Fourth Amendment violation in the detective’s inspection of her prescriptions, Fernandez must establish that she had a reasonable expectation of privacy in the location of the pharmacy. See United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) (holding that a defendant claiming an illegal search under the Fourth Amendment must prove "a possessory interest in the items seized” and "an expectation of privacy in the area searched”). The trial court did not address this specific issue below.


author: GERBER, J.

text:
    Juan ARRIETA-ROLON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2269.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2010.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

Juan Arrieta-Rolon (the “defendant”) appeals his conviction for first-degree murder. He argues that the trial court erred by admitting into evidence, as excited utterances, hearsay statements which a witness gave to a police officer at the scene. We agree with the defendant that the statements were not excited utterances. However, the state has shown beyond a reasonable doubt that the statements, which merely corroborated the witness’s trial testimony, did not affect the verdict. Therefore, we affirm.

The defendant and his girlfriend, Janai-na, were sitting outside of his apartment complex along with Janaina’s friend, Fer-nanda, who lived in another unit. Janaina said something which upset the defendant. Fernanda never had seen the defendant so upset. The defendant said he was going home and left. Ten or fifteen minutes later, the defendant returned and put a gun to Janaina’s face. The defendant asked Janaina, “Don’t you think I have courage?” Janaina did not reach up to touch or block the gun. The defendant pulled the trigger, and Janaina fell to the ground.

Fernanda ran to a neighbor’s unit. The neighbor observed Fernanda was crying. Fernanda said the defendant killed her friend, and she wanted to call her mother. She reached her brother and told him to call 911. Fernanda then ran into the parking lot and asked a driver to stop. The driver observed Fernanda was “[v]ery nervous and crying a lot.” Fernanda said her friend was hurt, and she asked the driver to call 911.

Fernanda then returned to the scene. The defendant was holding Janaina. The defendant said, “Please tell them that it was not me.” He said he did not want to do it, and it was an accident. He said he wanted to scare Janaina, not kill her. Fernanda and the defendant stayed there until the police arrived about twenty minutes later.

Fernanda testified that, when the police arrived, she initially told the police that she did not know who shot Janaina, and that the bullet came from someplace else. She testified she made this initial statement because the defendant was standing nearby, and she was scared he “was going to do something against me.” She testified that about ten minutes later, when the police separated them, she told the police the truth.

The officer who separately spoke to Fer-nanda testified later in the trial. He stated that, when he initially approached Fer-nanda, she was upset and crying. She said that she did not know who shot Janaina. When the officer testified that Fernanda was concerned about the defendant standing nearby, and that she did not want him to hear what she was saying, the defendant objected as to hearsay. The state agreed it was hearsay, but argued the excited utterance exception applied. The trial court required the state to have the officer lay a predicate as to Fernanda being upset and crying. After the officer did so, the trial court overruled the objection. The officer then testified that he put Fer-nanda in his patrol car. When the state asked the officer what Fernanda said in the car, the defendant made another hearsay objection. The state argued Fernan-da’s response would be another excited utterance. The trial court overruled the objection. The officer then testified Fer-nanda said “what happened to her friend could happen to her.”

The jury found the defendant guilty. This appeal followed. The defendant argues the trial court erred in finding that Fernanda’s statements to the officer were excited utterances. According to the defendant, the state presented no evidence that Fernanda still was under the stress of excitement from the shooting at the time of the statements. The defendant adds that Fernanda had time for reflection because she gave the police two different versions of how the shooting occurred. The defendant also argues the state cannot prove the error was harmless. According to the defendant, the statements bolstered the state’s case that he murdered Janaina with premeditation, destroyed his credibility, and contradicted his only defense that the shooting was a tragic accident. The defendant also contends the state compounded the error during closing arguments by referring to the statements.

Section 90.803(2), Florida Statutes (2008), provides that “[a] statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition” is not inadmissible. The determination of whether a statement is an excited utterance “involves a factual finding by a trial court, which is reviewed under the abuse of discretion standard.” Vanevery v. State, 980 So.2d 1105, 1107 (Fla. 4th DCA 2008). “In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section 90.803(2) ... the statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.” Hayward v. State, 24 So.3d 17, 29 (Fla.2009) (internal citations and quotations omitted).

As to the first prong, Fernanda’s statements were related to the shooting, which obviously was an event startling enough to cause nervous excitement. See id. (“It is not necessary that the statement illustrate the startling event; it is enough that the statement relate to the event.”). As to the second and third prongs, the supreme court has held:

[W]hile an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. The statement must be made without time for reflective thought because it is the lack of time to contrive or misrepresent the facts that provides the reliability for such statements .... [T]he test regarding the time elapsed is not a bright-line rule of hours or minutes.... [T]he [f]actors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.

Id. (internal citations and quotations omitted).

Here, the trial court overruled the defendant’s objections without expressing whether it had considered those factors. Our review of the record indicates that Fernanda was eighteen when the shooting occurred, though we cannot say her age was significant. The record also suggests that Fernanda was under greater stress immediately after the shooting than she was after the police arrived. That is, immediately after the shooting, she ran away, frantically crying and searching for help. She then returned to the scene. When the police arrived twenty minutes later, she was still upset. But she told the police a false version of how the shooting occurred before asking to be moved away from the defendant. Only after being put in the police car did she indicate that the defendant was the shooter. Such circumstances demonstrate that Fernanda had the time for reflective thought. Thus, her statements to the police were not excited utterances.

Cases with similar facts support our conclusion. See, e.g., Evans v. State, 838 So.2d 1090, 1093-94 (Fla.2002) (witnesses’ statements were not excited utterances where the witnesses initially told the police that the victim was shot by a man driving by and only after new officers arrived and significant time had elapsed did the witnesses identify the defendant as the shooter); Elysee v. State, 920 So.2d 1205, 1207-08 (Fla. 4th DCA 2006) (victim’s statement was not an excited utterance where the victim initially told an officer that the defendant was taking her home, but fifteen to twenty minutes later, asked to speak with the officer alone and told him that the defendant had attempted sexual battery upon her; even though the victim appeared visibly upset, the victim had engaged in reflective thought).

Although the trial court erred in finding Fernanda’s statements to the officer to be excited utterances, we find the error was harmless. In its answer brief, the state has proven beyond a reasonable doubt there is no reasonable possibility that the error contributed to the conviction. See Ventura v. State, 29 So.3d 1086 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”) (emphasis added in Ventura).

Among other arguments, the state has shown that Fernanda’s statements to the officer merely corroborated Fernanda’s trial testimony that Fernanda was afraid of the defendant after the shooting occurred and that the defendant was the shooter. Because of this corroboration, the error in admitting Fernanda’s statements to the officer was harmless. See Hojan v. State, 3 So.3d 1204, 1210 (Fla.2009) (“[W]here the evidence introduced in error was not the only evidence on the issue to which the improper evidence related, the introduction can be harmless.”); Esteban v. State, 967 So.2d 1095, 1099 (Fla. 4th DCA 2007) (trial court committed harmless error in allowing a witness to testify that the victim stated she knew her attacker, where the witness’s testimony was merely cumulative to the victim’s testimony); Erickson v. State, 565 So.2d 328, 334 (Fla. 4th DCA 1990) (“It is well settled that even incorrectly admitted evidence is deemed harmless and may not be grounds for reversal when it is essentially the same as or merely corroborative of other properly considered testimony at trial.”). Cf. Mariano v. State, 933 So.2d 111, 117 (Fla. 4th DCA 2006) (trial court’s error admitting hearsay was not harmless where the victim’s statement relayed by one witness went beyond the victim’s statements relayed by other witnesses and were inconsistent with the victim’s trial testimony); but see Elysee, 920 So.2d at 1208 (“Allowing the officer to bolster the credibility of the victim, who was the only witness to the crime, with her prior consistent statements, was prejudicial.”).

Because the error in admitting Fernan-da’s statements to the officer was harmless, we affirm the defendant’s conviction.

Affirmed.

TAYLOR and LEVINE, JJ., concur.


author: PER CURIAM.

text:
    Sabino Cruz VENTURA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1570.
    District Court of Appeal of Florida, Second District.
    April 23, 2010.
    Rehearing Denied June 17, 2010.
   PER CURIAM.

Sabino Cruz Ventura appeals an order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We find no merit in Ventura’s claims, and therefore, we affirm. However, we note that although Ventura pleaded guilty to second-degree murder, the judgment form and minutes of the plea hearing inaccurately reflect that he pleaded to second-degree felony murder. We therefore remand with directions to the postconviction court to correct the scrivener’s error which is apparent on the face of the record and which the postconviction court noted in its order of denial. See Stern v. State, 833 So.2d 190, 190 (Fla. 4th DCA 2002).

Affirmed and remanded.

ALTENBERND, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Natalie PRINCE and Michael Prince, Petitioners, v. Ricardo MALLARI, Respondent.
    No. 5D09-2365.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.
    Rehearing Denied June 10, 2010.

      Barbara Green, of Barbara Green, P.A., Coral Gables, and Todd E. Copeland, of Todd E. Copeland & Associates, P.A., Orlando, for Petitioners.
    Andrew J. Leeper and Cynthia D. Lally, of Leeper & Haftel, P.A., Orlando, for Respondent.
    Sharon C. Degnan, of Kubicki Draper, Fort Lauderdale, Amicus Curiae, for Florida Defense Lawyers’ Association.
   PER CURIAM.

Petitioners, Natalie Prince and Michael Prince [“Plaintiffs”], petition this Court for a writ of certiorari to quash an order of the circuit court that requires Natalie Prince to submit to a compulsory medical examination [“CME”] under Florida Rule of Civil Procedure 1.360 in the presence of a videographer hired by and acting on behalf of counsel for Respondent, Ricardo Mallari [“Defendant”]. We grant the writ and quash the order.

Natalie Prince suffered injuries to her neck, back and foot in an accident. She and her husband sued Ricardo Mallari and Bernadett Mallari for her injuries. Defendant served a notice of a CME pursuant to Florida Rule of Civil Procedure 1.860. The notice listed the date, time and location of the examination and the name of the physician who would perform it. The scope of the examination was described only as “neurological.” The notice also stated in bold type: “If the plaintiff videotapes the examination, Defendant will also videotape the examination, at its expense.”

Plaintiffs objected to the notice, asserting on multiple grounds that a defendant is not allowed to have any videographer or other representative at the examination:

a. [An] IME examination permits a minimal invasion of the right of privacy of a patient to allow a physical or mental examination of Plaintiff by a physician selected by the defense with respect to a physical or mental condition in controversy per Rule 1.360, Fla. R. Civ. P.
b. There exists no authority under Rule 1.360, by Florida Statute or under Florida law to allow a videographer or other representative of Defendant, other than the IME doctor, to attend the IME. In fact, the first District Court of Appeal in Chavez v. J & L Drywall, 858 So.2d 1266, 1269-70 (Fla. 1st DCA 2003), held that a defense attorney could not attend a IME, emphasizing the privacy rights of the patient examinee.
c. Defendant in this case should not be allowed to do indirectly via a videogra-pher what they cannot do directly under Chavez.
d. Plaintiff is entitled to have an attorney, court reporter, videographer, or other representative attend the IME because of the recognized adversarial nature of a IME and the need to protect the rights of the patient plaintiff. No concomitant need exists for the party hiring the IME doctor who is performing the examination on behalf of Defendant as the expert witness agent of Defendant and its insurance carrier.
e. Under [HIPAA], the Federal government has recognized the sanctity of a patient’s rights to privacy with respect to medical and psychological matters and records, and only under limited, necessary, carefully circumscribed circumstances justifying intrusion of that right is a third party allowed to invade an individual’s right to privacy on a limited basis.
f. The privacy of the examinee, not the examiner, is the issue, and therefore, the defense has no need or right to record the IME by any means or to have a videographer, court reporter, attorney, or other representative present besides the examining doctor at [an] IME conducted by the very medical expert it hired who will have first hand knowledge of the examination conducted by him/her, author a written report to defense counsel and be able to consult with defense counsel with respect to the examination as a specially hired, professional expert witness. See, Stakley v. Allstate Ins. Co., 547 So.2d 275 (Fla. 2d DCA 1989).

A hearing was held on Plaintiffs’ objections. The defense contended simply that, if Plaintiffs are entitled to videotape the examination, the defense also ought to be entitled to do so. Defense counsel further argued that they should have their own videotape of the examination because Plaintiffs’ videotape is Plaintiffs’ work product and “we’re not going to be able to get it without showing need and the inability to get it any other way.” If they do get it, they cannot assure its accuracy without a video of their own.

Plaintiffs’ counsel urged that videotaping the rule 1.360 CME by Defendant would violate Plaintiffs’ privacy and that the videographer was there for Plaintiffs’ benefit and protection. He pointed out that the case law recognized that a plaintiff who submits to a compulsory medical examination is in an inferior position and that one purpose of the videotape is to allow a plaintiff to have the session critiqued by his own expert.

The trial court ordered that the defense be allowed to have a videographer present, remarking: “to me it’s logical that if you allow one, you allow the other”.

As this Court pointed out in Lunceford v. Florida Central Railroad Co., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999), quashing an order excluding plaintiffs own videographer, “it is the privacy interest of the petitioner [plaintiff] that is involved, not the privacy interest of the examiner, and if the petitioner [plaintiff] wants to ensure that a compelled examination is accurately preserved, the petitioner should generally be entitled to do so.” Id. at 1241 (emphasis added).

The rule is now well established that a plaintiff is allowed to be accompanied at a compulsory medical examination by her counsel and a videographer of her choosing. In U.S. Security Insurance Co. v. Cimino, 754 So.2d 697 (Fla.2000), the Supreme Court held that an insured was entitled to have her own attorney or a court reporter attend her examination by the insurance company’s doctor. Whether in the context of a personal injury protection claim or in an examination pursuant to the civil procedure or workers’ compensation rules, the parties’ relationship is “adversarial” and a plaintiff is entitled to protection. Id. at 701.

Florida courts have made it clear that, although the defense has the right, by rule, to a compulsory medical examination of a plaintiff, defense counsel does not have the right to be present at the examination. See Chavez v. J & L Drywall, 858 So.2d 1266 (Fla. 1st DCA 2003). A plaintiff retains a right to privacy and that right will not allow for the compelled presence of third parties, whether it be counsel or a videographer. Gibson v. Gibson, 456 So.2d 1320, 1321 (Fla. 4th DCA 1984). Defense counsel cannot do by proxy what they are not permitted to do in person. See McGarrah v. Bayfront Med. Ctr., 889 So.2d 923, 927 n. 3 (Fla. 2d DCA 2004).

In Chavez, the court issued a writ of certiorari and quashed an order in a workers’ compensation case allowing the employer’s counsel to attend the CME of the claimant, recognizing the privacy interest of the person being examined. For the same reason, Natalie Prince cannot, against her will, be subjected to a physical examination in the presence of a videogra-pher hired by her opponent’s attorney. If the examination is recorded by her own attorney, she has control of it. To allow a stranger into the examining room to record the examination on behalf of one’s opponent, to be viewed and used as the opponent sees fit, is completely outside the operation of the rule.

The Chavez court also recognized the adversarial nature of the examination and the need for an unsophisticated plaintiff to have some protection in dealing with a professional expert retained by her opponent in a very unique, difficult circumstance. In a compulsory medical examination, a plaintiff is placed in the awkward position of being physically examined by someone not of his or her choosing, who has no interest in the plaintiffs well-being and not for medical treatment. A physician performing a CME “is essentially an expert witness for the party requesting the examination;” consequently, “the parties' relationship is clearly adversarial.” Chavez, 858 So.2d at 1268. A plaintiff being examined is allowed to have his attorney (or videographer) “present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to seek damaging admissions,” id., or engage in other unfair or improper conduct. Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 459 (Fla. 1st DCA 2006), citing Cimino, 754 So.2d 697. Natalie Prince has the right to such protections, but Defendant has no such right and needs no such protection. The trial court’s apparent conclusion that each side should have the same access because each side stands on equal footing is wrong for that reason. A plaintiff has a privacy interest that deserves protection and the defendant already is represented by the examiner.

Defendant’s complaint that Plaintiffs are in control of the video record is simply not a reason to order a second videographer. A plaintiff is entitled to record any or all of his or her examination as he or she sees fit, so long as it does not interfere with the examination. If a plaintiff has an incomplete or unclear record, that is a plaintiffs concern, not a defendant’s. The defense loses nothing to which it is otherwise entitled, and if a plaintiff elects to use the video at trial, he loses its work product protection. See Maguire v. Pool Doctor of the Palm Beaches, Inc., 23 So.3d 865 (Fla. 4th DCA 2009); McGarrah, 889 So.2d 923. See generally Dodson v. Persell, 390 So.2d 704 (Fla.1980).

Petition GRANTED; order QUASHED. GRIFFIN and COHEN, JJ., concur.

SAWAYA, J., concurs in result only.

      . It is also worth remembering that the original argument advanced by defense counsel for not allowing a plaintiff's counsel or vid-eographer to be present was disruption of the examination. Courts have decided, however, that a plaintiff's need for protection outweighed such concerns. Defendant’s described "need” in this case carries no such weight.