Public’s privacy rights and doctor-patient confidentiality hang in the balance in Rush Limbaugh case, defense attorney tells Appeals Court

MIAMI – February 17, 2004 – If the state’s wholesale seizure of Rush Limbaugh’s medical records is allowed to stand, laws protecting the privacy of every Floridian’s medical records would be rendered meaningless, Mr. Limbaugh’s defense attorneys said in a brief filed Tuesday with the Fourth District Court of Appeal.

The ACLU also filed a brief Tuesday supporting Mr. Limbaugh’s case, and an alliance of the National Foundation for the Treatment of Pain, The Florida Pain Initiative and the Association of American Physicians and Surgeons also will file a supporting brief.

Prosecutors seized Mr. Limbaugh’s medical files from his doctors, disregarding the protections in the Florida Constitution and state law, Mr. Black argued in the brief.

If the seizure is allowed to stand, Mr. Black argued, “every prosecutor across this state will be able to seize entire medical files based on probable cause alone, in derogation of the statutory and constitutional right to privacy in our medical affairs.”

“What meaning would the patient protections in the Constitution and the law have if prosecutors could disregard them any time they wanted to?” Mr. Black said Tuesday. “As Mr. Limbaugh’s attorney, it is my duty to do everything I can to have his rights under the Constitution and the law restored. But the ACLU and the other groups have joined this case because the outcome will significantly affect everyone’s right to doctor-patient confidentiality and medical privacy.”

Although no charges have been filed against Mr. Limbaugh, access to his medical files is the central focus of Palm Beach County State Attorney Barry Krischer’s investigation, which stems from Mr. Limbaugh’s public admission last October that he was addicted to pain medication prescribed by his doctors.

The files were seized under authority of a search warrant in December, but are now being held under seal while the Court of Appeal decides whether a lower court erred in granting prosecutors access to them.

Mr. Black’s brief cited the Florida Supreme Court’s 2002 decision in State v. Johnson that held a prosecutor’s power to use search warrants does not override the privacy protections in state law. “To hold otherwise,” the Court noted, “would make the [medical records] statutes meaningless.”

Mr. Black’s central argument is that the Florida Constitution and state law specifically require law enforcement to first apply for a subpoena to obtain medical records and notify the patient of their intent. Secondly, the law requires that the patient be given an opportunity to oppose the action in a court hearing. And third, if the seizure is opposed, the state must provide evidence at the hearing why the subpoena should be granted.

None of these standards was met. “Prosecutors simply seized the records, and quietly held on to them for six days before letting anyone know what they had done,” Mr. Black argued in the brief. “With respect to the records held by Dr. (Antonio) De La Cruz, the only notice Mr. Limbaugh received came from reporter Chris Matthews, during his television show ‘Hardball with Chris Matthews.'”

The Fourth District Court of Appeal has spoken frequently and strongly in the past about the state’s obligation to provide patients with notice and a meaningful opportunity to be heard before seizing their medical records.

• In State v. Rutherford (1998), the Court affirmed the trial court’s suppression of medical records obtained in violation of the notice requirement. The Court noted that perhaps “[e]xclusion of evidence in this case will serve its purpose and reach a type of governmental action that an exclusionary rule was designated to deter – prosecutorial misconduct that is likely to be prevented if the evidence seized is suppressed.”

• In Klossett v. State (2000), the Court suppressed medical records after prosecutor’s “notice” to the defendant was mailed to the wrong address due to a clerical error. This Court said the error was fatal because prosecutors failed to do “…something as simple as double-checking the defendant’s address, requesting confirmation that he received notice before issuing the subpoena, or simultaneously sending notice to his attorney with enough time to allow the defendant to object …”

• In State v. Cashner (2002), the Court affirmed a lower court’s order suppressing medical records when notice was given but the patient was not told the date and time of the hearing. The Court said the notice “… was so flawed that it effectively constituted no notice at all. The state’s conduct in issuing the defective notice left Cashner with no means for voicing his legitimate and timely objections which would have forced the state to demonstrate the relevancy of the information it sought. By depriving Cashner of the opportunity to object, the state successfully obtained the medical records it needed to prosecute him and, in the process, violated his right to privacy.”

Mr. Black’s brief asks the Court to order Mr. Limbaugh’s records returned to the doctors and prohibit the prosecutors from obtaining them in the future and using them in any way.

“In Mr. Limbaugh’s case, the prosecutors’ disregard for his privacy and confidentiality rights is much more egregious than in the other cases where the Court has suppressed the records,” Mr. Black said. “A ruling to exclude Mr. Limbaugh’s records would be consistent with the Court’s previous decisions.”

Mr. Black reiterated for the Court his frequent charge in recent weeks that the State Attorney has been waging a smear campaign against Mr. Limbaugh in the media because of his celebrity and his controversial opinions. The brief says that after learning the medical records had been seized, Mr. Black demanded that prosecutors set a court hearing “as should have been done before the records were seized.”

“Two days later, on December 4, 2003, counsel watched in disbelief as the list of Mr. Limbaugh’s prescription medications was featured on national television,” Mr. Black argued in the brief. “The State Attorney’s Office had intentionally filed the warrant affidavits and the list of prescription medications in the public record with the Clerk of the Court, and then directed the media to the court file.”

Mr. Limbaugh is appealing the December 23 ruling of Circuit Court Judge Jeffrey Winikoff that prosecutors could maintain review the records because they acted in good faith and probably would have gained access to them anyway if they had gone through the required procedure.

Mr. Black argued that prosecutors had acted in bad faith by seizing the records without notice even though they admitted in court that they were aware of the proper procedure.

“Their conduct was deliberate and calculated, as it was when they filed the list of Mr. Limbaugh’s prescription medication in the public record for the enjoyment of the national media,” Mr. Black argued. “And perhaps the most shameful display of bad faith occurred on December 23, 2003, when State Attorney Barry Krischer personally rushed his investigators to examine Mr. Limbaugh’s medical records…” in the few hours before defense attorney’s could brief their pending stay request and file an appeal.

Prosecutors have said they are investigating a possible case of doctor shopping, which is defined as getting overlapping prescriptions from at least two doctors, each unaware of the other’s prescription. They have said they are looking into prescriptions written for Mr. Limbaugh between March and September 2003.

By skipping the subpoena process, prosecutors were able to seize all of Mr. Limbaugh’s records without showing their relevancy to the investigation, Mr. Black’s brief argues. “For example,” Mr. Black argues, “Dr. De La Cruz’s records date back to the year 2001.”

The Fourth District Court of Appeal has not set a time schedule for deciding the case and has not as yet asked the prosecutors for a response to the briefs.