FL Supreme Court Cant See The Forest Through The Medical Records

 

The Florida Supreme Court has done it this time. By what can only be deemed as making rulings for political reasons the Court today stated that they refused to hear Conservative Talk Radio Icon Rush Limbaugh’s appeal regarding the seizure of his medical records. First we had the Florida Election in 2000, The Terri Schiavo matter and now Rush. Do these people understand they have created precedent and that they have opened everyone’s medical records, not just Rush’s?

Update: I’m going to have to agree with McGehee, Rush get out of FL.

The Florida Supreme Court said Thursday it will not consider an appeal from conservative commentator Rush Limbaugh over prosecutors’ seizure of his medical records during an investigation into whether he illegally purchased painkillers.

The 4-3 order did not explain the court’s reasoning.

Limbaugh’s attorney had argued that an appeals court misconstrued Florida law when it ruled prosecutors could obtain the records with search warrants.

“The consequences of this ruling affect the privacy of medical records for every person in Florida,” Simon said. “Some of the most personal things in our lives are contained in our medical records and if they’re not related to what a government agency is investigating, then it should remain nobody’s business.”
Limbaugh’s attorney, Roy Black, said in a statement that Limbaugh should not have to sacrifice his privacy to prove his innocence.

He has accused Palm Beach County State Attorney Barry Krischer, a Democrat, of leading a politically motivated investigation against him and labeled it “a fishing expedition.” He took a break from his afternoon radio show on Thursday for a doctor’s appointment and made no comment about the ruling. The show has 20 million listeners a week and is heard on nearly 600 radio stations

Whether you are a Republican, Democrat or Independent; you should be scared out of your mind if you live in Florida. The FL Supreme Court has made your medical records and what you relay to your physician, all that is held to be privileged and confidential, as fair game to any malicious prosecutor with a political agenda.

UPDATE: Statement released by Rush Limbaugh’s attorney Roy Black

Update: I agree with McGehee on this one, Rush get out of FL.

Posted April 29, 2005 by
Judicial, Politics | 12 comments


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  • Comments

    12 Responses to “FL Supreme Court Cant See The Forest Through The Medical Records”

    1. SoloD on April 29th, 2005 2:18 pm

      I am not sure I see what the danger is here. Admittedly I am not completely versed on all the details, but from what I’ve read, the DA didn’t go on a fishing expedition, he had evidence that a crime was committed, which he used to obtain a search warrant for medical records that may help to show, or disprove, that there was a crime.

      There is no Constitutional right to have your medical records protected, especially not if they show that a crime was committed. This happens everyday, just not to celebrities with a big microphone.

    2. Tomahawk on April 29th, 2005 4:13 pm

      Actually, the Health Insurance Portability and Accountability Act (HIPAA) is a federal statute that ensures the privacy of medical records for most patients in America. Furthermore, Article I, section 23 of the Floridqa Constitution gives all Citizens of Florida a Constitutional Right to Privacy…so there IS a Constitutional privacy right embodied in the State Constitution.

      The DA had an affidavit of an individual of questionable moral character and subject to arrest herself stating that Rush bought pills from her. There was no evidence from her that he doctor shopped, this was a fishing expedition by a joke of a DA.

      And yes…in case you were wondering…I do have my Juris Doctorate.

    3. SoloD on April 29th, 2005 8:06 pm

      HIPPA has not been applied to state actors acting in their law enforcement capacity. Hence, if you are basing your rights off of HIPPA, you are off base.

      Although I am gald to see that you accept the Right to Privacy, the underpinnings of Roe v, Wade.

      As for the Fl. Constitution, I will confess to my ignorance, although the Supreme Court of Florida appears to agree with me.

      And regarding your charcaterization of the evidnce used by the DA, that would go to whether there was probable cause. Which has nothing to do with the privacy rights.

    4. Tomahawk on April 29th, 2005 8:57 pm

      Let me get to your little Roe dig real quick. THe right to privacy, invented in the penumbra of 14th Amendment (Justice White did an admirable job of pointing out what an absolute farce that is), is NOT, as you know, in the Federal Constitution. The Florida Constitution EXPLICITLY grants a right to privacy to Floridians, thereby recognizing that the Federal Constitution has no such right. So nice try…but as you know, the Federal Consitution grants no privacy rights outside of the 4th Amendment.

      I would not be too proud of saying the FL Sup. Ct. agrees with you…they are overturned nearly as much as the 9th Circuit. Also, they agreed with you 4-3…and I am not a betting man, but if I were, I would be able to tell you who those 4 were without seeing the opinion.

      As to your characterization of HIPAA, your statement about state actors in their law enforcement capacity is wrong. HIPAA does apply to state actors in their law enforcement capacities, however, HIPAA specifically permits the prevailing rule of release pursuant to a valid court order.

      Lastly, you said, “but from what I’ve read, the DA didn’t go on a fishing expedition,he had evidence that a crime was committed, which he used to obtain a search warrant for medical records that may help to show, or disprove, that there was a crime.” Your statement about probably cause is just restating the obvious…of course, since he got the court order, the judge believed there to be probably cause. My contention was not that the DA didnt get it…my contention was that there was not enough to obtain a warrant. I have never applied for a search warrant with the affidavit of a known criminal with an interest in the alleged action without indep. verification of a sworn LEO or at least another witness. Since the court announced its decision without comment, and since it declined to hear the appeal as to privacy, they made no decision as to the validity of the search warrant or the evidence presented…so I wouldnt say you are out of the woods there.

      Lastly this time…let us not forget that the DA originally obtained the warrant because they “found out” that Rush had received prescriptions for over 2000 pills in 4 months. The question you, I , and everyone else should want to know is…”why is private medical information…prescribed by a doctor…suddenly available to a prosecutor, absent any other evidence?” This is a political prosecution, bar none.

    5. Red on April 29th, 2005 10:55 pm

      SoloD

      “As for the Fl. Constitution, I will confess to my ignorance, although the Supreme Court of Florida appears to agree with me.”

      As tomahawk has said that is nothing to be proud of. Let me say that I am a Healthcare consultant and am well versed in HIPAA compliance, you have not much of an idea what it states or pertains to.

      You speak of no fishing expedition but then say, “There is no Constitutional right to have your medical records protected, especially not if they show that a crime was committed.” When they show a crime was committed??? That’s the fishing expedition, son. How would one know only after looking at a patients records.

      I am not advocating against this for Rush, I am doing so for you and the rest of all individuals to have their privacy protected. I am not too sure if you would want your medical history available to any prosecutor who could make a name for himself at your expense.

      Why do you think the ACLU & Rush are actually teamed up with each other unless this is a major issue of privacy?

    6. SoloD on April 30th, 2005 12:04 am

      Considering that I deal with HIPPA requirements everyday in my legal practice (yes, I also have a J.D.), I am well versed in HIPPA allows and what it allows and does not. So we will have to agree to disagree. (If you have caselaw that supports your position, I will be happy to reconsider mine.)

      As far as the combination of Mr. Limbaugh and the ACLU, I believe that it shows the hypocrisy of an individual who has otherwise shown very little interest in protecting the rights of accused criminals, but who is more than willing to use the same defenses he would otherwise ridicule, in order to protect himself. It also demonstrates the intellectual consistency of an organization (even if you don’t agree with their positions, which I usually do not) that objects to government intrusion into what they consider private and/or protected matters, even if the person who is being accused has vilified them and similar positions in the past.

      Bottom line — Limbaugh is criminal, an addict who should be treated with some sympathy, but also a criminal. He should not be able to use his position and his microphone to avoid punishment.

    7. Red on April 30th, 2005 12:43 am

      SoloD

      “Bottom line — Limbaugh is criminal, an addict who should be treated with some sympathy, but also a criminal. He should not be able to use his position and his microphone to avoid punishment.”

      Let me ask the question, are you prejudiced against Limbaugh in that you do not agree with his position, politics, etc? Celebrity runs both ways. It can be a detriment as much as it can be a benefit. In many cases especially when you are a target and number one in your field there is a huge target on your back. Do you honestly think that if this case was against anyone else like you or me that the DA would have gone after the user like this rather than the distributor or the facilitator?

      There is precedent in the state of FL of members of the government who were in the same position. The addict was helped with programs not gone after like public enemy #1. Frankly, there is no consistency. If DA’s go after people in a different manner based on political motivation, which this is, that is a scary proposition. What’s worse is that there will be a Republican DA out there looking for payback. Hardly any way to run the legal system.

      “Mr. Limbaugh and the ACLU, I believe that it shows the hypocrisy of an individual who has otherwise shown very little interest in protecting the rights of accused criminals, but who is more than willing to use the same defenses he would otherwise ridicule, in order to protect himself. ”

      You lost me at ACLU.

      What on earth are you talking about? Man what kind of bias do you have? I certainly hope you do not represent people you disagree with politically with that type of opinion. The ACLU came to his aide.

      The ACLU’s request to submit a “friend-of-the-court” brief on behalf of Limbaugh.

      Just a question but do you have as little regard for attorney/client privilege as you do for patient/Doctor?

    8. SoloD on April 30th, 2005 9:08 am

      Simple question: Is Limbaugh a criminal?

      If so, then isn’t the DA’s job to go after criminals, using the legal methods at his disposal? (And the subpoena of the medical records was one of those tools — not my opinion, but the opinion of every court that has reviewed this case.)

      If not, then who is showing their prejudice.

      As for me, I am no Limbaugh fan, but don’t have any particular axe to grind against him either. I find him the most entertaining of the conservative talk show hosts, and have been known to listen to his show from time to time.

      And as for doctor/patient confidentiality, it does not hold a candle to attorney/client confidentiality.

    9. Red on April 30th, 2005 12:25 pm

      SoloD

      “And as for doctor/patient confidentiality, it does not hold a candle to attorney/client confidentiality.”

      Great. That would be because the AMA is a joke at protecting its members vs the ABA.

      I’m sorry but I, like most in America, do not have high esteem of the legal profession these days. I have a real issue with politically motivated DA’s that are not consistent. My God SoloD I am trying to figure out how in the hell the DA in FL, State Attorney Brad King, doesn’t go after the 3 accomplice’s in the Jessica Lunde murder?

      Here is the question that I have regarding the medical records. What would one hope to find by looking at the records? If it was Dr shopping then he would have been a patient of numerous Dr’s. If the need to look at the medical records is that there are an over amount of prescriptions from that one Dr, then the doctor should be the one brought up on charges.

      You ask the question, Simple question: Is Limbaugh a criminal? I don’t know you are the attorney, I THOUGHT THERE WAS A PRESUMPTION OF INNOCENCEIN THIS COUNTRY?

      Exactly what type of attorney are you? You mean the people you defend do not have that same presumption? Interesting. If that was your client you would just allow the govt seize your clients med recs? Without an objection? Hmmm …

    10. SoloD on May 1st, 2005 7:33 am

      The presumption of innocence is a legal standard — we are not in Court and I am not a juror. I am allowed to make judgments, after all he has admitted he is an addict, and the law prohibits what he did (purchasing or receiving prescription drugs without a doctor prescription), ergo he is a criminal.

      You certainly are free to withhold judgment until there is a conviction, it would be nice if more people did that, however I assume that you will use this same standard fro Michael Jackson or OJ or the next accused child molester. And for that matter, I assume that when people in your circles accuse Bill Clinton of being a criminal or of having committed a crime that you stand up and insist that he was never convict, indeed the Senate actually acquitted him.

      As for Roy Black’s legal tactics, I am an admirer. But as a lawyer you frequently have to make an argument to the Court that you now is a loser and hope the Court rules in your favor anyway, sometimes you even win. I have never said that he should not use every legal argument at his disposal, only that it is a hypocritical to be using arguments that he has derided in the past.

      But you didn’t answer my question — Do you consider Limbaugh a criminal?

    11. Red on May 1st, 2005 2:07 pm

      SoloD

      Have you or have you not defended individuals that you knew were guilty? Do not give me this, presumption is a legal standard. Every day attorneys defend clients they KNOW are guilty as sin. I am sure you are no different. We have attorney’s defending convicted child molesters WHO HAVE CONFESSED. Their answer is they are not guilty even after the confession. We have a 20th high jacker who wants to state he is guilty but his attorney’s want to maintain his not guilty status. Hypocrisy is the legal profession that knowingly defends people that are so guilty that instead of mitigating the situation and saving their clients life, the atty instead lies thru their teeth and gets an individual off who was 100% guilty.

      “only that it is a hypocritical to be using arguments that he has derided in the past.”

      Give me an example, what has he derided on in the past? Protection of medical records? When?

      “Do you consider Limbaugh a criminal?” – Criminality is deemed upon the conclusion of a trial, as you have stated … ITS A LEGAL STANDARD.

      Do you consider OJ a criminal?

      I am sure if this was Robert Downy Jr, it would be a different story. Low and behold it was.

      SoloD,

      All politics aside, please explain what can be gained by seeing Rush’s medical records? No one’s complete medical history should have to be exposed to defend their self. There could be a litany of things in there that have no baring on this case and are now opened to the public. This is nothing more than an attempt to embarrass someone.

      Having dealt with many a ,malpractice & insurance fraud cases, there are many other means to gain such information. What are the record’s going to show, that he had back pain and was prescribed meds? If there were an over prescription of meds then the DR should be investigated. How would one be able to prove from med recs that someone was prescribed 2000 pills? Do you honestly think that it would be in the records?

      What part of what the DA is stating is a crime brings in the complete med rec.

    12. SoloD on May 1st, 2005 9:46 pm

      “what can be gained by seeing Rush’s medical records?” I am not sure, but it may show evidence of a crime. To use your logic, what is to be gained when police enter someone’s house? People have an expectation of privacy there too. The police have to gather evidence, maybe there is nothing in those records that is incriminating, I don’t know, but there is no Constitutional right to have your medical records remain private, if they can demonstrate that a crime was commited. If there is nothing incriminating in the records, they will never be made public. It is not as though you can walk into the DA’s office and ask to see records.

      As for representing the guilty, it is part of being a lawyer. It is how our system works. Everyone is entitled to a defense, and to be assured that their rights are protected. It is how the sytem works. If you are upset with an imperial DA in the Rush situtation, imagine how bad it would be if there were no attorneys to protet the rights of the accused. By defending even the worst, criminal defense attorneys keep the police & DA’s honest. Is it perfect, of course not, but it a neccesary check against government power — and it is the best system in the world.

      But you still are dancing around the question I asked you — do you think that Limbaugh broke the law? And if so, why should he not be prosecuted? Celebrities are frequently prosecuted by DAs for the publicity value. Ask Martha Stewart or ask Rudy Guiliani, he used to do it all the time when he was a US attorney. Sometimes they get the benefits of celebrity, sometimes they get to be targets.

      Why does Rush deserve the special treatment? I guess that is what I don’t understand. He admitted he was an addict, he had to obtain the drugs somewhere, it is illegal to obtain these drugs in the amounts that he reportedly used, so someweher he broke the law. Why shouldn’t he be proescuted? Honestly, what is the differnce between him and someone who buys crack right off the street?

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