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Limbaugh lawsuit on medical privacy sent to state’s Supreme Court
By Peter Franceschina
Staff Writer

November 18, 2004

Rush Limbaugh won an appeals court ruling Wednesday that will send his case to the Florida Supreme Court, which could decide if prosecutors properly seized his medical records late last year as a part of an investigation into the conservative radio host's prescription drug use.

Limbaugh's attorney characterized the ruling as a victory for patient privacy rights for all Floridians. Palm Beach County prosecutors didn't comment, but they have said Limbaugh's privacy rights have been protected throughout their investigation.

In early October, a three-judge panel of the 4th District Court of Appeal in West Palm Beach ruled Palm Beach County prosecutors didn't violate Limbaugh's constitutional rights when they seized his medical records from four doctors with search warrants.

Limbaugh and his attorney, Roy Black, have maintained that prosecutors should have followed a procedure in state law and notified Limbaugh that they intended to obtain his medical records.

That would have given Limbaugh a chance to contest it in court, and a judge would have to decide whether prosecutors could then issue subpoenas for the records. Instead, prosecutors determined Florida case law allowed them to seize the records with search warrants without notifying Limbaugh.

The appeals court agreed with prosecutors in its October ruling, which technically cleared the way for prosecutors to continue with their investigation though Limbaugh's medical records remain sealed. Black then asked the same three-judge panel to reconsider its decision or send the case to the Florida Supreme Court.

The three judges issued a brief opinion Wednesday morning in which they declined to reconsider their decision, but they asked the Florida Supreme Court to decide the issue on a statewide basis.

Craig Waters, spokesman for the state Supreme Court, said the justices could decide to hear the case or decline to take it up. Just because one of the state's appeals court asks the high court to hear a case, the review isn't automatic, he said.

Limbaugh, 53, has not been charged with any crimes, but prosecutors have said they think the Palm Beach resident committed at least 10 felonies by "doctor shopping" -- secretly obtaining overlapping drug prescriptions from more than one doctor in a one-month period.

Black expressed confidence Wednesday that Limbaugh would prevail in the state's high court.

"The Florida Supreme Court has ruled in prior cases that Florida's medical privacy laws elevate patient medical records to special status and provide `a strict scheme for limited disclosure,'" Black said in a statement. "I am optimistic that the Supreme Court will rule that the wholesale seizure of Mr. Limbaugh's medical records by the Palm Beach State Attorney was done in violation of these laws."

Limbaugh has drawn support from the American Civil Liberties Union and physicians' groups. Those groups plan to file briefs with the state Supreme Court if the justices take up the case.

Andrew Schlafly, general counsel for the Association of American Physicians & Surgeons, which backed Limbaugh, said the appeals court recognized the importance of the issue in asking the state Supreme Court to review the case.

"We should not have open season on a patient's medical records, especially when there isn't even a charge filed. In this case, they seized records that went beyond the investigation," he said. "People should have the opportunity to object before somebody goes poking around their medical records."

Randall Marshall, legal director of the ACLU of Florida, said this area of the law is unclear, which sometimes can be the impetus for the state Supreme Court to take up a case.

"That is certainly one of the reasons we would hope the Florida Supreme Court would take this, to decide what is an unsettled area of the law," he said.

Palm Beach County State Attorney Barry Krischer declined to comment. If Limbaugh wins in the Florida Supreme Court, it could mean the end of the criminal investigation. Prosecutors have said in court filings the investigation is stymied until they gain access to the medical records.

Peter Franceschina can be reached at [email protected] or 561-832-2894. Copyright © 2004, South Florida Sun-Sentinel

Additional Information: More Information on AAPS Involvement in the Limbaugh Case

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