[ Wednesday, October 06, 2004 ]


Rush Limbaugh's Medical Records: Not Private. You've no doubt heard of Rush Limbaugh's prescription pain killer addition, and have probably heard that the Florida authorities are pursuing a criminal action against him for "doctor shopping": going to multiple doctors to get multiple prescriptions in excess of what one doctor would give.

The state prosecutors seized Limbaugh's medical records from his primary physician when they raided his office, armed with search warrants. Limbaugh challenged the seizure, stating that he should have had notice of the seizure and the opportunity to challenge the inclusion of all of his records in the search warrants. Limbaugh and his lawyers contend that the seizure is a "fishing expedition" by the prosecutors office, and that it violated his privacy rights under HIPAA and Florida law. The ACLU even weighed in on Limbaugh's side. The State Attorney on the case (conveniently, a Democrat) contended that privacy rights do not impact the ability of the state to conduct criminal investigations using proper subpoenas and search warrants, and giving a criminal target prior notice that the records will be searched would severely hinder any investigation.

The 4th District Court in Florida ruled that, "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." There was a strong dissent (in part), indicating that at least the lower court should review the records to determine if a limited amount of the records could be sufficient for disclosure to prosecutors, and also to determine what types of disclosure (and, presumably, what types of protection from disclosure) would be appropriate. A copy of the ruling is here.

I think the court is correct. The trial judge should certainly entertain and strictly (really, really strictly, not "Eagle Colorado" strictly) enforce a protective order on the records, reviewing them to determine what is relevant and returning the remainder to the doctor. The judge should also make sure that the greatest possible confidentiality is given to the rest of the records, sealing them if they are not specifically relevant to the exact charge in question.

Really, just imagine what else could be in those records, and the mental images it could provoke. Do you want to know that Rush takes Viagra? Is that a visual you want sticking with you? (Of course, I can't avoid the punch line: "it only makes him taller.")

Jeff [3:38 PM]

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