Limbaugh appealing medical records ruling

Rush Limbaugh's attorneys filed motions in Florida's Fourth District Court of Appeal (10/7 RBR Daily Epaper #196), seeking to overturn a recent decision by a three-judge panel regarding the privacy of the talk show host's medical records. The filing argues that the panel erred when it ruled that prosecutors were entitled to seize and inspect all of Limbaugh's medical records without giving him notice and an opportunity to object. It asks for a rehearing by the same three-judge panel or by the full 12-member appeals court, and also seeks additional review by the Florida Supreme Court.

No charges have yet been filed against Limbaugh. His attorney, Roy Black, has said in court that there was no doctor shopping, and that Limbaugh should not have to sacrifice his right to medical privacy to prove his innocence.

"The outcome of this case will significantly affect everyone's right to doctor-patient confidentiality and medical privacy," said Black. "I think the decision was made in error. It directly contradicts a decision by the Florida Supreme Court and a privacy ruling by this same court in 2002."

The appeals court panel, in a 2-1 decision 10/6, ruled that prosecutors can obtain and read all of a patient's medical records by using search warrants obtained in secret court hearings without the patient's knowledge.

"Patient rights are not protected by holding secret proceedings where only the prosecutor attends," Black argued in his brief. "Florida's medical privacy statutes afford all patients the right to be heard before their medical records are seized."

The panel's two-member majority reasoned that the state's medical privacy laws apply only to subpoenas because the statutes do not specifically mention search warrants, which are governed by the Fourth Amendment.

"If this decision stands, all medical patients in Florida will lose all privacy rights afforded by legislature and the Florida Supreme Court," Black noted. "Why would a prosecutor ever comply with the strict scheme in the privacy statutes when he could use a secret search warrant instead?"

The 2-1 majority said the privacy laws would apply to "innocent third parties" but not to "targets of an investigation," even though Rush has not been accused of any crime.

Limbaugh wants a rehearing by the same three-judge panel or by the full 12-member appeals court and is also asking for additional review by the Florida Supreme Court.