Pubdate: Thu, 19 Feb 2004
Source: Tallahassee Democrat (FL)
Copyright: 2004 Tallahassee Democrat.
Contact:  http://www.tallahassee.com/mld/democrat/
Details: http://www.mapinc.org/media/444
Note: Prints email address for LTEs sent by email
Author: Howard Simon

RUSH LIMBAUGH AND THE ACLU: WHEN DONKEYS FLY

My View

Conservative talk radio commentator Rush Limbaugh is appealing the seizure 
of his medical records by the state attorney of Palm Beach County.

We need to look beyond the notoriety of the central figure in this case and 
defend the principles that protect everyone's privacy. While the case 
involves Limbaugh's right to the privacy of his medical records, everyone 
has a stake in the outcome. The result will impact the security of medical 
records and the privacy of the doctor-patient relationship for every person 
in Florida.

Last October, Limbaugh checked himself into a rehabilitation clinic after 
telling listeners to his radio program that he is addicted to painkillers. 
The medical records of four doctors were confiscated in a criminal 
investigation involving alleged "doctor-shopping" - whether Limbaugh 
illegally obtained prescriptions for pain medication from several doctors.

The right to privacy, guaranteed by the Florida Constitution, is one of the 
most important rights we possess. Government should be allowed to intrude 
upon it only for the most compelling and narrowest of reasons. A person's 
medical records cannot be disclosed in any civil or criminal action except 
in accordance with a procedure adopted by the Florida Legislature (Section 
395.3025) that specifically addresses concerns about medical privacy and 
requires courts to balance the state's needs with the individual's right of 
privacy.

Although officers obtained a search warrant to seize Limbaugh's medical 
records, a warrant - as opposed to a subpoena - is the most intrusive means 
of obtaining evidence and does not meet constitutional and statutory 
requirements necessary to protect privacy.

A search warrant permits law enforcement officers access to all of a 
patient's records, not just those relevant to a law enforcement 
investigation. It provides no assurance that information about treatments 
or conditions unrelated to a criminal investigation will not be disclosed 
or misused by the state.

A physician is privy to the most private details of a person's life which, 
if revealed, could be devastating to the person's personal, social and 
professional life. If the state can get access to these records without 
notice, patients may hide information from their doctors fearing that that 
information could end up becoming public.

A patient may seek treatment for a wide range of illnesses, unrelated to 
anything of concern to law enforcement. In seeking treatment for a urinary 
tract infection, a patient may reveal details of an extra-marital affair 
and be tested for HIV and other sexually transmitted diseases.

The patient's medical history may disclose treatment for depression or that 
as a young woman she received an abortion or had a child who was later put 
up for adoption. No one other than the patient and his or her physician 
should be privy to this information without consent.

When a subpoena is sought, a judge can either order that the physician only 
disclose those portions of the medical records that are relevant or order 
that the records be turned over to the court for in camera review and 
redaction if necessary. The court can issue protective orders over how the 
records are to be maintained and subject any improper disclosure to 
contempt. The court can also ensure that after the investigation records 
not made public are returned or destroyed, preserving the right of privacy 
to the fullest extent possible.

No matter how much evidence the state has that a suspect has committed a 
crime and that evidence is contained in a medical file, the court still 
must afford the person an opportunity to be heard and determine the scope 
of the material to be disclosed.

Suppose the state can establish probable cause that a medical record 
contains evidence that a suspect was engaged in insurance fraud by staging 
automobile accidents. The state should not be permitted access to records 
that reveal that the suspect also carries a rare gene for an inherited disease.

There is, of course, the larger question of how criminal prosecution of a 
person addicted to pain medication advances the "war on drugs" and leads to 
a healthier and less crime-ridden society. Certainly, there must be better 
strategies to address illicit drug use than knee-jerk reliance on 
prosecution and incarceration.

Law enforcement officers ignored state law - and Limbaugh's rights - by 
seizing his medical records with a search warrant rather than by following 
mandated procedure to obtain a subpoena. But whether the state ultimately 
prevails in its efforts to obtain Limbaugh's medical records is less 
significant than whether the balance between every patient's right to 
privacy and the state's job to investigate crimes - a balance required by 
the Florida Constitution and state law - will be strengthened or weakened.

- - Howard Simon is executive director of the American Civil Liberties Union 
of Florida. He can be contacted by email at   ---
MAP posted-by: Jay Bergstrom