[ Wednesday, November 17, 2004 ]
Limbaugh Case update:
The Florida appeals court has sent the issue
to the Florida Supreme Court to make a state-wide determination on whether the prosecutors had an obligation to notify Rush Limbaugh proir to seizing his medical records pursuant to a search warrant, and give him an opportunity to have a judge rule whether prosecutors ought to see his records and, perhaps, redact portions not relevant to the case. I'm no expert on the Florida state law issues involved here, it seems like there's a conflict between the state statutory requirements that require prosecutors to give notice prior to seizing medical records and case law that allows police and law enforcement prosecutors to use search warrants to seize records (including medical records) in connection with a police investigation. The trial court allowed the records to be used in connection with the initial charge and refused to exclude them as improperly-obtained evidence, and the appeals court originally agreed that the trial court did not exceed its discretion. However, Limbaugh and his attorney challenged the decision of the appeals court, asking the court to review its decision and/or send it to the Florida Supreme Court. The appeals court apparently declined to reverse itself, but did send it on to the Supremes.
Of course, this is the same Supreme Court that botched Gore v. Bush
so badly that the US Supreme Court had to step in and fix it.
There's no real HIPAA issue here; Rush's doctor can hand over the records when requested pursuant to a search warrant that the doctor reasonably determines is a good, legal search warrant. And Limbaugh and his lawyer are not charging that the doctor did anything wrong. But they are complaining that the prosecutors should have used the state statutory scheme and given Rush notice (and the opportunity to have a judge decide) prior to the prosecutors even seeing what was in those files.
Jeff [4:00 PM]
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