MEDICAL RECORDS: CASE WILL IMPACT RIGHT TO PRIVACY

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

Some people may be surprised to learn that the American Civil
Liberties Union has come to Limbaugh's defense.

While the case involves Limbaugh's right to the privacy of his medical
records, we need to look beyond his notoriety and defend the
principles that protect everyone's privacy.

This case will impact the security of medical records and the privacy
of the doctor-patient relationship for every person in Florida.

Under Florida law, a person's medical records cannot be disclosed
except in accordance with a procedure adopted by the Florida
Legislature that specifically addresses concerns about medical privacy.

Although officers obtained a search warrant to seize Limbaugh's
medical records, a warrant -- as opposed to a subpoena -- 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.

When a subpoena is sought, a judge can order the physician to disclose
only those portions of the medical records that are relevant or order
that the records be turned over to the court for 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.

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.

Whether the state ultimately prevails in its efforts to obtain
Limbaugh's medical records is less significant than whether the
balance between a 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

Executive director, American Civil Liberties Union

Florida, Miami