Rush Limbaugh and doctor shopping and florida supreme court and district court of appeals and roy black and right to privacy and privacy of medical records

I think I am probably one of the few Americans who has neither listened to Rush Limbaugh's radio show nor has any interest in doing so. It is not as if I listen to loads of other folk and have no time for Rush; it is just that I am not that interested in the kind of (radio) journalism, from the right or the left, that is long on invective and criticism and short on analysis and factual investigation. Most things in life, I believe, can be understood apart from the perspective of ideology and axe-grinding, and I want to try to do that, insofar as possible. Rush resists that, and has given birth to a generation of talk show hosts who swim in the same cistern. While it is hard for me to screw up sympathy for him in his legal trials that have come since his October 2003 admission of addiction to prescription drugs OxyContin and Hydrocodone, I think he is probably right about one thing that will eventually lead to the Palm Beach County prosecutor's dropping the criminal investigation against him, and that is that he probably did not violate the Florida "doctor shopping" law in buying these products. Here are a few things about the history of his case.

The Limbaugh Search, Seizure and Legal Appeals

On November 25, 2003, after search warrants were obtained by Florida police in accordance with Fl. Stat. 395.3025(4)(d) and Fl Stat. 933, they seized medical records and files from four doctor's offices (three in FL and one in CA) who had prescribed these and other drugs to Limbaugh over the course of five or six months beginning in the Spring of 2003. The State then sent a letter to Limbaugh explaining that it was presently investigating a violation of Fl. St. 893.13, which provides, in relevant part:

"It is unlawful for any person...to withhold information from a practitioner whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practioner within the previous 30 days."

This statute, passed by the Florida Legislature in 2001, was an attempt to crack down on the practice of obtaining vast supplies of prescription medication from various doctors for resale. The letter further stated that the records, which had been sealed upon seizure, would be opened in ten days if Limbaugh didn't wish to contest the seizure.

Of course Limbaugh and his legal team came rushing forth with all guns blazing. They sought a declaration in the state circuit court that would have declared the search and seizure illegal because it breached Art. 1, sec. 23 (the privacy provision) of the Florida Constitution. The circuit court was deaf to their pleas, and so Limbaugh appealed the case to the District Court of Appeal, which didn't decide the case until October 6, 2004 (of course, the medical records remained sealed all this time). The three judge panel held that the search warrant was executed properly and that the privacy provision of the FL Constitution did not trump the search and seizure provision, nor were two statutes prescribing the way that medical records could be obtained by subpoena implicated. The court closed by saying, however, that the circuit court judge could exercise discretion as to which medical records were to be turned over to prosecutors.

Not content with this result, Limbaugh's team appealed to the Fl Supreme Court, which declined review (4-3) early in May 2005. With Limbaugh's legal avenues exhausted, the case went back to the circuit court, where the judge decided earlier this month which records would be available to the prosecutor. We don't know at this point what those records contain.

Getting in Front of the Issue

Immediately upon the circuit judge's decision to hand over some medical records to prosectors and return most of them to Limbaugh, Limbaugh's lawyer Roy Black tried to spin things to his client's advantage. One of the "spun" facts simply wasn't true, but others may be true and, if so, will exonerate Limbaugh. Black was quoted as saying that he was grateful to the judge for reviewing the records and not giving many to prosecutors. "This proves our point that the State's wholesale seizure of Mr. Limbaugh's medical records was improper." Not so fast, Roy. Actually Rush's legal challenge to the seizure by search warrant was unsuccessful. The authorities did it correctly. There is no constitutional right of privacy of medical records in Florida. The Limbaugh decision didn't change the state of the law. As a matter of fact, the circuit judge was exercising authority which the appellate court said he had in turning over specific records to prosecutors and forbidding them from seeing others.

But if Black is right on the following point, then Limbaugh should be off the hook. Black says that 2,130 pills were prescribed, of which 1,863 were painkillers (1,733 were hydrocodone). These were to be taken over a period of 217 days (which is a little over seven months). The avergae dosage was therefore 8 per day, "which is not excessive and which is in fact a lawful dose." He then described some of the other pills in more detail. If the data given by Black is correct, and he would be foolish to give precise numbers that would be easily falsifiable, the picture that emerges of Limbaugh is of a man recovering from deep back pain and cochlear implant (ear) surgery who, not unlike thousands of Americans, became addicted to his pain medication. Whether his dosage is on the high side of lawful or not, it is seemingly a dosage near enough to the legal limit to make criminal prosecution for doctor shopping out of the question.

Were there other drugs in bigger quantities at other times? Perhaps, but this earlier usage is not at issue in the case. Is Rush Limbaugh as much of a drug addict as many people who have been derided by in-your-face radio talk show hosts? Probably. Was he involved in a drug ring where he was purchasing drugs from multiple physicians for resale to others? Almost certainly not. Is he a hypocrite? Probably. Is he a criminal under the terms of Florida law? I don't think so. Will he be prosecuted? I would think not. Are medical records any more private as a result of his legal challenges? No. Limbaugh's attorneys argued that he should have been able to contest the warrant before it issued. Would that be a good legal standard for American search law? By no means. What do you think that real drug dealers would do in the time between hearing and search? You got it; flush a lot of toilets.

Conclusion

Rush is right, therefore, not because he is right on the law but because the facts of his case probably don't amount to criminal activity. When he turned himself into rehab, he said he was no "model" for anyone. I am inclined to agree.

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