October 6, 2004
Limbaugh Court Ruling Means Open Season on Everyone’s Medical Records
(Washington) -- The Association of American Physicians and Surgeons issued the following statement by it General Counsel, Andrew Schlafly, in reaction to the decision issued today by the District Court of Appeals, Fourth District, Florida, in the matter of Rush Limbaugh v. the State of Florida regarding the release of his medical records. The AAPS filed an amicus curie brief in that case.
"It's open season now on everyone's medical records and everyone in the country needs to start playing hide and seek with their doctor following today’s ruling by District Court of Appeals in the matter of rush Limbaugh’s medical records finding that there is no constitutional protection for medical records against search warrants.
"We’d better tell doctors to Mirandize every patient – tell them ‘You have the right to remain silent’ – because this is the end of privacy in medical records. The message to patients is clear: anything you tell your doctor can and will be used against you.
"Rush Limbaugh has not been charged with a crime, and yet the State of Florida seized access to many of his highly personal medical records, without prior notice. The State even grabbed medical records unrelated to its investigation.
"Forget about doctor shopping for pain medication, patients cannot even "doctor shop" for confidentiality anymore! Every doctor can now be turned against his patient at any time.
"The winners are investigators, insurance companies, employers, adversaries, and anyone else who wants the State to go on a fishing expedition against a citizen.
"It’s dismal that only a partial dissenting opinion recognizes the right to privacy. Judge Melanie G. May chided her colleagues’ failure to do so in very stern terms. She writes, ‘I dissent therefore, from the majority’s decision to keep its ‘Eyes Wide Shut’ to the right to privacy in a person’s medical records.’ She then cites the special nature of the doctor patient relationship dating back 2400 years to the Oath of Hippocrates.
"The Florida court rejected that Oath whereby doctors have sworn that ‘I will keep to myself" what ‘I may see or hear in the course of the treatment.’ The new rule is that doctors ‘will keep for the State’ sensitive information so that it can be used against the patient.
"This could not come at a worse time, as Senators Bill Frist and Hillary Clinton have banded together to promote a federal plan towards electronic databases of all patients. On Aug. 25th, both wrote together in support of a ten-year plan by the Department of Health and Human Services to establish electronic databases of medical records.
"AAPS deplores forcing doctors to testify against their patients, and will continue to fight this decision in court.
"Neither common sense nor the physician-patient privilege can stand in the way of the political witchhunt against Limbaugh. These fishing expeditions through medical records in search of a crime should not be allowed."
NOTE: The AAPS, a non-partisan dues-supported professional association, has been dedicated to protection of the patient-physician relationship from third-party intrusion since 1943.