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 Hsaclu@aol.com
(mailto:Hsaclu@aol.com).