Limbaugh attorney: Search violated rights
Prosecutor: 'Common-sense standard' allowed search
WEST PALM BEACH, Florida (CNN) -- Rush Limbaugh's attorney argued Wednesday before a three-judge panel that prosecutors who accuse the radio talk-show host of "doctor shopping" to get drugs should not be allowed to look at his medical records, which they seized last November using a search warrant.
In 1980, the Florida legislature decided that medical records should be given special protections, Limbaugh attorney Roy Black told Florida's 4th District Court of Appeals judges. "It is the clear intent of the legislature that search warrants not be used to obtain patient records," he said.
The law requires that patients be notified before such a seizure, he said. "If you do not make a good-faith attempt to serve notice, you cannot use those records," he interpreted the law as saying.
Instead, authorities should have sought a subpoena, which Limbaugh could have challenged, Black argued. By using a search warrant, "You drive a wedge between the patient and the doctor."
The doctor's staff sealed the records before handing them over to Palm Beach authorities, and the court is holding them.
But the fact that they were sealed does not mean that notice to Limbaugh can be given after the fact, Black held. "There is no right of seizure of patients' medical records."
Black noted that the records could include all sorts of private and, to his client, potentially embarrassing information unrelated to the investigation.
But James Martz, with the state attorney's office in Palm Beach County, argued that "the common-sense standard" should be applied in allowing the state to unseal the records and that such a standard "makes more sense than almost all of the intellectual arguments we've engaged in."
Under Martz's "common-sense" argument, courts have long considered the forcible entry into a person's home to be a particularly intrusive means of gathering evidence, yet still routinely issue such warrants.
How then, can the court agree with Black's argument, which says a law enforcement officer "can't look within a commercial file in a doctor's office for evidence of a similar felony?" Martz asked, implying that such a search would be far less intrusive and therefore more acceptable.
Martz said that, if the lawmakers had meant to confer such protection on medical records, "They would have come right out in the statute and said, 'We know we're taking away a huge tool in fighting crime and law enforcement ... but we feel it's important.'"
Judge Carole Y. Taylor suggested that one remedy might be to send the records back to the lower court to decide what records the prosecution should be allowed to look at.
Martz responded that the state should be able to see all of the records to determine whether he was being truthful with his doctors about his complaints.
"Certainly, if the patient came in and made fictitious accounts for injuries to acquire the narcotics that they acquired, that would be a strong message to the jury as to what the intent of the patient was when he went in there."
Martz added that, if the record revealed that Limbaugh had been suffering from separate ailments that caused him to be prescribed overlapping medication, that information "might cause the state not to file charges."
Judge Gary M. Farmer appeared unpersuaded, saying, "What you're saying is you hope to examine those records to determine that there is any relevance."
In his rebuttal, Black reiterated, "You can't do a wholesale seizure and hope to find evidence of a crime."
Prosecutors allege that Limbaugh went "doctor shopping" -- going to several doctors to get overlapping prescriptions for narcotics -- a felony in Florida.
Prosecutors seized the records in November after learning that Limbaugh had obtained 1,800 painkillers -- prescribed by four doctors -- over 210 days.
The 53-year-old radio personality, who has not been charged, sought treatment for addiction in October. He contends he saw the doctors for legitimate medical reasons.
The case has resulted in a strange alliance. The American Civil Liberties Union, typically no friend of the conservative radio host, has taken his side in the case. Limiting government access to Limbaugh's records could hinder the federal government's attempt to get access to women's abortion records in its attempt to ban late-term abortions.
Limbaugh discussed the issue Wednesday on his radio show.
"They admitted that they have no clue what to charge unless they can see all my medical records," he said. "We're trying to stand up and oppose this and stop this wanton abuse of privacy from taking place."
