Limbaugh's lawyer defends privacy

Fla. appeals court is told seizing medical records overstepped legal bounds

April 08, 2004|By Peter Franceschina | Peter Franceschina,SOUTH FLORIDA SUN-SENTINEL

Rush Limbaugh's five-month fight to keep his medical records from Palm Beach County prosecutors went before an appeals court yesterday, in what likely will result in a pivotal decision on whether the criminal investigation into his prescription drug use can go forward.

Miami attorney Roy Black portrayed the prosecution's seizure of Limbaugh's medical records late last year as an invasion of privacy that could have adverse effects on the doctor-patient relationship for all Florida residents.

He maintains that prosecutors should have followed a procedure in state law and notified Limbaugh they intended to obtain his medical records, to give Limbaugh a chance to contest it in court before a judge issued a subpoena for the records.

Prosecutor James Martz contended that state law didn't exempt medical records from being seized with search warrants. Martz said the medical records are essential evidence in determining whether Limbaugh broke the state's "doctor shopping" law by secretly obtaining overlapping prescriptions from different doctors.

Limbaugh, 53, has not been charged with any crimes. The Palm Beach resident admitted in October he was addicted to prescription drugs, the result of severe back pain, and entered a month-long treatment program.

"We're trying to stand up and oppose this and stop this kind of wanton abuse of privacy from taking place," Limbaugh, who was not at the hearing, said on his afternoon radio show.

For nearly 25 years, the Florida Legislature has been amending the protections that attach to medical records, Black argued. "It put a zone of privacy around a patient's medical records, and it gave those records special status, more than any other records," he said.

Black said the Legislature intended that investigators use the least-intrusive means to obtain medical records, which would be with subpoenas.

"With a search warrant, you go in with police. You can search every document in the office to find the one you want. There is the issue of intimidation and fear, and you drive a wedge between the patient and the doctor. Can you imagine going back to that office, dealing with the doctor and staff after police have been in there seizing their records?"

After seizing Limbaugh's records and sealing them, prosecutors notified Black. Palm Beach Circuit Judge Jeffrey Winikoff determined that Limbaugh's privacy rights were protected and that prosecutors were entitled to review the records. It is that ruling that Limbaugh is appealing.

Martz argued that if legislators intended to prohibit prosecutors from using search warrants to seize medical records, that would have been spelled out in the law. "Nowhere does it say that," he said.

Investigators had good reason for going after the records without prior notice, Martz said. They tried to obtain records from an unidentified lawyer's office in the case with a subpoena only to find the records were gone, Martz said. Had Limbaugh been notified first, Martz said, there was no guarantee the records wouldn't have been removed or destroyed.

The South Florida Sun-Sentinel is a Tribune Publishing newspaper.

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