As temperatures rise in the Sunshine State, so too does the heat on the lawyers who seized Rush Limbaugh’s medical records last year as part of their criminal investigation into alleged "doctor shopping," that is whether Mr. Limbaugh illegally obtained prescriptions for pain medication from several doctors.
It seems that some over-ambitious and over-eager prosecutors ignored state law when they got a search warrant to seize his medical records and held them for six days before informing counsel of the seizure, rather than following a mandated procedure to obtain a subpoena and provide notice and an opportunity for Mr. Limbaugh to be heard.
Although Florida law permits enforcement officials to seize evidence by use of a search warrant without notice to the owner, a specific state statute mandates otherwise when medical records are at issue. Section 395.3025(4)(d) of Florida law provides that medical records can be disclosed without the patient’s consent "in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court … and proper notice by the party seeking such records to the patient or his or her legal representative." (emphasis added).
Mr. Limbaugh’s counsel — the estimable Roy Black — charges that the prosecutors violated both the spirit and the letter of this law by seeking a warrant rather than a subpoena. "The state’s warrant powers do not trump the notice and hearing requirements of section 395.3025(4)(d). If they did, section 395.3025(4)(d) would be meaningless, and every prosecutor throughout this state would be able to seize ex parte a patient’s entire medical file in derogation of the statutory and constitutional right to privacy. Surely, that is not what the Legislature intended," the brief notes.
The charges of unethical conduct may not be unfounded. According to legal documents, "[t]he prosecutors in this case admitted during the hearing in the circuit court that they researched the law and were aware of the notice and hearing requirements, yet intentionally chose to bypass them and proceed by ex parte warrant instead."
Well, if that doesn’t scream of wrongdoing, what does?
In a case already complicated by the politics of it all, the interesting turns keep coming when calls for further investigations target the investigators, rather than the originally accused.
The hot water has been turned up on State Attorney Barry Krischer and his staff after the conservative Landmark Legal Foundation filed a request with the Florida State Bar to investigate alleged misconduct by Mr. Krischer and other members of his staff assigned to the Limbaugh case. The Foundation’s request chastises the attorneys for the controversial release by the State Attorney’s office of letters detailing office discussions with Limbaugh’s attorney over ending the investigation.
For the moment, the Bar is maintaining that it does not have authority to investigate an elected official. The Foundation disputes that fact in a letter it sent back to the Bar last week, encouraging the Bar once again to conduct the investigation.
If an investigation moves forward, which we firmly believe it should, the unethical disclosure of personal medical information by the State Attorney’s Office should be reviewed, as well. It is alleged in court documents that the State Attorney’s Office intentionally filed the warrant affidavits containing the list of Mr. Limbaugh’s prescription medications in the public record with the Clerk of Court, and then directed the media to the filings.
Inasmuch as we support the First Amendment right of the media to unfettered access to court documents, such access must carefully examined when it tramples on the privacy rights of another party. Mr. Limbaugh’s privileged remarks made to his physicians and included in his medical records are clearly protected under the Fourth Amendment and other constitutional privacy guarantees. In the absence of an overriding state interest, the government simply cannot obtain that information in violation of Mr. Limbaugh’s rights. What’s more, there is no overwhelming state interest to be found in granting the government carte blanche access to Mr. Limbaugh’s entire medical files when the subject of the state’s investigation was only alleged overlapping prescriptions between March and September 2003.
No charges have been filed against Mr. Limbaugh, and the investigation is on hold until the Fourth District Court of Appeals of Florida decides whether to unseal the medical records seized by the prosecutors. Mr. Limbaugh’s attorneys have requested the court to take the case on appeal and quash the order of the circuit court permitting the disclosure of Mr. Limbaugh’s records.
The Association of American Physicians and Surgeons, in an amicus brief, is supporting Mr. Limbaugh’s appeal. The dominant theme of AAPS brief is the chilling effect that patients will encounter if the state can simply serve a search warrant on a physician allowing an "open season on access to [patients’] medical records." The brief also outlines the importance of not infringing on the Hippocratic Oath and the Florida Constitution, both of which protect the confidentiality of the physician-patient relationship.
To the surprise of some, and the chagrin of others, the American Civil Liberties Union of Florida is supporting Mr. Limbaugh’s appeal as well, making very clear, however, through its Executive Director Howard Simon, that it is supporting Limbaugh only "because the result will impact the privacy of the doctor-patient relationship for every person in Florida."
Indeed, if Pandora’s Box is opened in Florida and prosecutors are given broad access to medical records in violation of the sacred physician-patient privilege, the harm will likely spread nationwide.
Already, the confidentiality inherent in the physician-patient relationship has been lost on some top law enforcement officials, including U.S. Attorney General John Ashcroft, who recently demanded that several hospitals turn over the personal medical records of women who have had late-term abortions. Attorney General Ashcroft said the subpoenas are necessary to determine whether the operations were medically necessary in connection with a lawsuit challenging the Partial-Birth Abortion Ban Act. In defense of this unprecedented move, Ashcroft’s lawyers argue that "individuals no longer possess a reasonable expectation that their histories will remain completely confidential."
Explain that to the overwhelming majority of Americans who do not want the government or other third parties to have access to their medical records without their permission. According to a Gallup survey released in 2000, 92 percent polled opposed allowing government agencies to see their medical records without their permission. "The Gallup survey results show that individuals clearly do not want government agencies or private groups accessing their medical information without their permission," said Sue Blevins, president of the Institute for Health Freedom, whose organization commissioned the study. More recently, a Harris Poll conducted in February 2003 found that 76 percent of the adults surveyed reported that it is extremely important to be able to share confidential matters with trusted persons.
Someone check the math, but, as we see it, the majority of Americans still want and expect our laws to maintain strict standards to protect their medical records. Now if we could only get a few prosecutors to pay attention to those polls, or better yet the law.