Sounds to me like a "W" for Rush.
Limbaugh records case opens this week
By Susan Spencer-Wendel, Palm Beach Post Staff Writer
Monday, April 5, 2004
WEST PALM BEACH -- Rush Limbaugh may be a flash point of inflamed opinion and rhetoric, but it's the dry 20-minute court appearance his attorney will make this week that matters most.
Limbaugh's attorney, Roy Black, will argue Wednesday before the 4th District Court of Appeal in West Palm Beach that Limbaugh's medical records were seized illegally and should be returned to him.
The public first learned of the Limbaugh case last October when a tabloid newspaper reported that he was addicted to prescription painkillers. Since then, the case has caused a political and judicial maelstrom in the national media.
It has pitted the conservative talk-show host and his famous lawyer against the Palm Beach County State Attorney's Office.
The appellate court's ruling could be an end to a possible criminal case against Limbaugh -- or a beginning.
Without Limbaugh's medical records, prosecutors may have nothing to base their prescription drug investigation on; with them, they well may.
Limbaugh, 53, who has not been charged with a crime, is being investigated by the state attorney's office on allegations of doctor-shopping, which is duping a practitioner into giving overlapping prescriptions. The crime is a felony in Florida, though it is rarely prosecuted. Limbaugh and Black adamantly have denied that doctor-shopping occurred.
The decision will be watched nationally -- not just by legions of Limbaugh's ardent "ditto-head" fans and the media but also by lawyers on all flanks of the issues at play: privacy, patients' rights and prosecutors rights to conduct criminal investigations.
Limbaugh's challenge is believed to be one of the first appeals of its kind in Florida regarding a patient's medical records seized by search warrant from a doctor's office.
The central issue is how Limbaugh's records were taken. State Attorney Barry Krischer chose search warrants. With two judges' approval, investigators seized the records, sealed them, then notified Limbaugh they had done so and did not view the records until they had another judge's approval.
Attorney Black cries foul, arguing that Krischer should have followed a state law outlining another way: subpoenas. A patient is notified by subpoena that their records are sought, then given a chance to object in front of a judge before the records are seized.
The left-leaning American Civil Liberties Union, Limbaugh's most unlikely ally, is backing him. The ACLU has joined Black in presenting legal arguments to the court.
"We believe that the actions of the state attorney seriously threaten fundamental privacy rights of each and every citizen of the state of Florida," said ACLU attorney Jon May. "And that includes Rush Limbaugh."
Krischer's prosecutor, Assistant State Attorney James Martz, has told a judge that the quick seizure of the records was necessary. That it is prosecutors' prerogative when they fear the records might be altered or destroyed if there is advance notice.
Prosecutors do not have to put possible criminals on notice, he has said.
Warrant vs. subpoena
Investigators seized Limbaugh's medical records late last year from three doctors in offices in West Palm Beach and Jupiter and one in Los Angeles. The probable cause they showed the two judges who approved the warrants were pharmacy records showing the Palm Beach resident had received about 2,000 pills in a five-month period.
State Attorney Bruce Colton, whose jurisdiction covers Indian River, Martin, St. Lucie and Okeechobee counties, said this week that he thinks the procedure Krischer used to take Limbaugh's records is appropriate. Colton recently used a warrant to seize medical records from a Vero Beach doctor suspected of overprescribing pain medication. The doctor, like Limbaugh, has not been charged.
Colton, though, already has lost some of his records. A trial court judge ruled last week that the records of patients who objected could not be used. The judge ruled that prosecutors should have used a subpoena -- the same argument Limbaugh's lawyers used before a Palm Beach County trial court judge and lost.
Despite the loss, though, Colton still believes that he and Krischer have used the right method. Both prosecutors seized the records with a warrant and kept them sealed, then notified the patients to see if they objected.
"That way patients' rights are protected, along with the integrity of the criminal investigation," Colton said. "(Krischer's) really getting a bad rap about that."
The offices of other prosecutors, including Broward and Miami-Dade counties, declined to comment on the Limbaugh case or Krischer's handling of it. Ed Griffith, spokesman for the Miami-Dade State Attorney's Office, did say, though, that while most of the medical records used by Miami-Dade are obtained with a subpoena, it's "not an uncommon practice" to use a search warrant when need be.
A small physician's group that's backing Limbaugh calls the seizure of patient records "an assault on the private practice of medicine."
"It's an issue that every doctor in the country is concerned about," said attorney Andy Schlafly.
The group, the American Association of Physicians and Surgeons, has about 4000 independent practitioners as members.
Two other small groups concerned with prosecution of doctors and patients in relation to pain medication also have joined the fight. None of the nation's major medical groups has weighed in.
Schlafly questions what happens next after prosecutors have the records. "The doctor has to testify against a patient? That's like an attorney testifying against a client, a priest against a confessor," Schlafly said. "It's a direct violation of the Hippocratic oath."
Limbaugh vows appeals
The appeals court will hear Limbaugh's argument Wednesday and is expected to rule within a few weeks.
If the three-judge panel finds that Limbaugh's case is a question of great public importance, it could send the case to the Florida Supreme Court. Limbaugh has said on his radio show that's he'll to appeal the issue to the highest courts in the land if he loses.
CNN and other national media outlets are expected to attend Wednesday's hearing.
Black routinely has appeared on news shows, castigating Krischer's tactics, and talking of "raids" and "smear campaigns" against Limbaugh. Black calls the investigation a "fishing expedition" begun after Limbaugh publicly admitted an addiction to pain pills in October. Limbaugh's admission came soon after the National Enquirer published a story detailing Limbaugh's addiction.
Limbaugh has decried the battle on his daily radio show, which is broadcast locally, saying it's a political witch hunt conducted by Krischer, a Democrat.
Black, who defended William Kennedy Smith in his 1991 rape trial in West Palm Beach, has ceased giving interviews regarding the Limbaugh case, citing the upcoming oral arguments.
Krischer's office repeatedly has declined to comment, except to say they scrupulously protected the rights of Limbaugh.
Now, the 4th District Court of Appeal is left to decide. |
