Panel upholds seizure of Limbaugh's records

Fla. appeals court says rights were not violated

October 07, 2004|By Peter Franceschina and Missy Stoddard | Peter Franceschina and Missy Stoddard,SOUTH FLORIDA SUN-SENTINEL

Palm Beach County prosecutors didn't violate Rush Limbaugh's privacy rights when they seized his medical records late last year in an investigation into the conservative radio host's prescription drug use, an appeals court ruled yesterday.

The ruling by a three-judge panel technically clears the way for prosecutors to resume their investigation, stalled since December, but Limbaugh's medical records likely will remain sealed while he pursues further appeals, possibly to the Florida Supreme Court.

Limbaugh, 53, has not been charged with any crimes, but prosecutors have said they believe 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.

"This may be cast as a victory for the state in the media and in the legal community. In a strict sense, you'd have to say that the state has won this round," Limbaugh said, according to a transcript of his radio show for yesterday afternoon.

"This is not yet a victory for the state. We will continue to fight this as we have fought it all the way."

Some legal experts have said the case could hurt doctor-patient relationships across the state if prosecutors are allowed to seize patient medical records without notifying the patient. Others say the case does not break new legal ground because prosecutors have long had the power to obtain medical records in a criminal investigation.

If Limbaugh had won the appeal, it could have meant the end of the criminal investigation. Prosecutors wrote in court filings that the investigation was stymied until they gained access to the medical records.

Palm Beach County State Attorney Barry Krischer read a brief statement yesterday, saying prosecutors would limit comment because of the continuing investigation. He repeated his assertion that Limbaugh's privacy rights have been protected throughout the investigation.

Limbaugh has accused Krischer, a Democrat, of being on a politically motivated witch hunt. Krischer deflected a question about whether he was gloating. "This is me not gloating," he said with a smile.

Before the appeals court in April, Limbaugh's attorney, Roy Black, argued that prosecutors should have followed a procedure in state law and notified Limbaugh they intended to obtain his medical records.

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

The three appeals court judges, led by Chief Judge Gary M. Farmer, all agreed that state law allows prosecutors to use search warrants to seize potential evidence in a criminal case, and that extends to medical records.

"The state's authority to seize such records by a validly issued search warrant is not affected by any right of privacy in such records," Farmer wrote.

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

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