Prosecutors Can Examine Limbaugh Records

Yahoo/AP ^

[Alberta's Child]

LOL. There's no reason why the "numbered Swiss bank account" concept couldn't be used in the medical profession!

[harpo11]

Rush Limbaugh has his reasons for holding back commenting on this dastardly democrat organized and managed political witch=hunt, but I sure wish he would let his loyal listeners sound off loud and proud. Rush should give over his Golden Microphone over to his supporters.

Heck, Wednesday will sort of be like Open Line Friday, come on Rush, I sure have a few choice words to say to your persecutors. I'll be real short too, two bleeping words only, I promise.

[RS]

"...nor should he be treated as though these were illegal drugs. ..."

When you buy them from your maid they ARE illegal drugs and you ARE supporting criminal activity.

[Labyrinthos]

Rush Limbaugh, like him or not, is the most powerful ally the conservatives have; hence attacks from liberals or other disgrunted sops.

You sound like the leftists making excuses for their poster boy Clintoon -- "So what if he got a hummer from an intern and lied about it under oath. He's the most powerful ally the liberals have; hence attacks from conservatives and other disgruntled sops."

[Labyrinthos]

Your statement is so off the wall, I'm stunned. Rush has already admitted to being adicted to pain killers. Rush has already taken responsibility for his actions. Where have you been .. listening to Al Franken .. I would guess.

Rush went on the radio today and said he was being prosecuted because of who he is and what he stands for and that this would never happen if he was a sports star or from Hollyweird. Maybe so, but so what. That's exactly what Greenpiece (of crap) is claiming in response to the criminal charges against it for violating a law that hasn't been enforced in over a hundred years. And again -- so what? Rush is acting like every defendant that I've ever represented, all of whom were probably guilty and most of whom got off Scot free. I want Rush to continue to succeed, but the undisputed fact is that he's a serious drug addict and he ain't going to get better as long as (a) he continues to play the victim and dodge the full consequences of his acts; and (b)you people continue to support him as enablers.

[CyberAnt]

Well .. I don't consider myself an enabler .. and I do understand fully how that relationship functions.

You are entitled to your opinion .. but I do not agree with you that Rush is guilty of criminal activity.

[PeyersPatches]

You sound like the leftists making excuses for their poster boy Clintoon

---

First it's comparisions with Imus, now it's Clinton? Rush isn't a rapist like your boy, Clinton. Scoot on back over to DU. You really (I mean REALLY) need a new hobby to get you over this Rush hating obsession. Seriously, try sea monkeys or something.

[Howlin]

Rush Limbaughs' medical records were siezed without a subpoena. The "officials" just walked in and demanded them.

Absolutely untrue.

The seizures occurred after the State Attorney's Office obtained Nov. 25 warrants alleging Limbaugh received prescription medication of a controlled substance from four physicians, to obtain overlapping prescriptions, in a five-month period in 2003.

From THIS article.

[Howlin]

See 348 please.

[altura]

I think his popularity may decline at some point, but neither of us will live to see it.

At least I won't ... you sound a bit immature.

[altura]

I agree and I heard him today and I didn't hear whining.

You can't please these Rush bashers. If he doesn't talk about it, they gripe.

If he does talk about it, they gripe.

I think they want him to sob into the microphone, reach the cigar hand toward the heavens and cry, "help me, Jesus, for I have sinned.

But then they would say he was reaching for sympathy.

Ugh. With friends like these, as they say .....

[altura]

Anybody who cites that Imus as a role model is reaching.

Imus can't get through an hour without 6 or 7 sycophants to help him.

Rush does 3 hours by himself with the occasional caller.

I can't stand that conceited loser, Imus.

[Looking for Diogenes]

There's no reason why the "numbered Swiss bank account" concept couldn't be used in the medical profession!

I don't want to burst your bubble, but I can think of several reasons why that concept is not viable.

1. What if you are unconscious or can't remember your number?

2. What pharmacy is going to fill a prescription made out to a number?

3. Forget about insurance.

4. If it is done to circumvent laws then it is a conspiracy to commit fraud.

The good news is I just got an email about a confidential source for Viagra. Would you like me to forward it to you?

[Matchett-PI]

Scoutmaster: "160.203 says that state law, not HIPAA, prevails when "[t]he provision of State law relates to the privacy of health information and is more stringent than a standard, requirement, or implementation specification adopted under [HIPAA]." Federalism in action -- if the state law is more protective of privacy, then it trumps HIPAA"

In light of that, no doubt you'll find this little item to be of interest:

Tuesday, 12-23-03 Aprox 5:30 PM EDT Sean Hannity Radio Show - Transcribed by me from my audiotape.

Host: Curtis Slewa {sp?), sitting in for Hannity.

Guest: Mark Levin of the Landmark Legal Foundation.

Curtis: "..Now, Mark, on the matter of Rush Limbaugh, we heard him on his nationally syndicated show respond to what his attorney Roy Black had said about the Palm Beach District Attorney's office and their on-going investigation. It's very confusing to me, and I think most folks listening from afar, because of the nature of us not really knowing what's going on. Can you try to bisect it and dissect it for us?"

Mark: "OK. This hasn't been discussed in any detail by all these meatheads on TV, and it's very upsetting to me. I secured a copy of the transcript of the hearing and I want to walk you through this briefly. But there are very, very important points that haven't been made public, that are in the public record! OK?

Number one: The Florida Constitution creates a fundamental right to privacy, in article one, section three.

Unlike the US Constitution, in which every Liberal tries to find a right to privacy, Florida actually creates one in black and white, OK? It has a statute that creates a doctor-patient priviledge, OK? This becomes a fundamental right under article one, section three, twenty three of the Florida Constitution.

Number three: There's a three-part test that has to be met before you can get a search warrant. The test, in my opinion, was not met. The difference between a search warrant and a subpoena is this; a search warrrant, you're concerned -- prosecutors are, law enforcement is -- that the evidence might disappear, so you might want to get a breathalizer test right away. You might want to look for something right away. But doctor's records??

As opposed to a subpoena, where the party being subpoena'd, or the party being targeted has a right to intervene, seek court, ah, seek a hearing, before they can actually seize the documents. At no other time, in the history of Palm Beach County, has a search warrant been issued in this manner against somebody who was addicted to pain killers -- against somebody who went into rehab.

So, what is it that they're investigating? Let me put it to you this way, Curtis, first we read the leak about money laundering, right?"

Curtis: "Yes"

Mark: "Then they asked the New York authorities, 'Are you investigating money laundering?' 'No'.

Curtis, interrupting: "Right -- Attorney General, Elliot Spitzer, who's a pit bull on almost every issue, said, 'No, we're not looking into this at all'"

Mark: "And no fan of Rush Limbaugh's, I'm sure."

Curtis: "No, not at all. Nor of Sean Hannity, I might add."

Mark: "Then we heard about a drug ring. What happened to the drug ring this DA was investigating? Then we heard about this maid who was all over the National Enquirer. Does anyone know where this maid is? 'Cause I haven't read any reporter who's interviewed her., or her drug-pushing husband. Where is he?"

Cyrtis: "Alright now, on that matter -- ah, there were media reports today in which Roy Black was talking about the blackmail -- the actual blackmail. Ah, what penalties exist for that in the State of Florida, that the maid and her husband might be subject to?"

Mark: "There are extortion penalties in every State. Those are very, very serious crimes. I don't know why this DA is standing on its heels or sitting on its tukkas (sp?). Now, hold on, I just want to make a point."

Curtis: "Sure."

Mark: "Let's talk about these four doctors. This is critical. Roy Black layed this out the other day, and not a single media outlet picked it up, Curtis. They accused Rush of 'doctor shopping'. That's the big crime they're looking for, OK? Now listen to this. Two of the doctors are Dr. Drurer (sp?), and Dr. D'Zeil (sp?). Alright?"

Curtis: "Yes."

Mark: "They say Rush would go to Dr. Drurer and then would go to Dr. D'Zeil, or D'Zeil, and then go to Drurer, and somehow shop doctors in order to get prescriptions, OK?

Curtis: "Ah huh."

Mark: "What their affidavit to their search warrant did not say, is that these doctors both worked at the same surgery center -- the Jupiter Outpatient Surgery Center -- and not only that, as Black pointed out, Drurer was only filling in for D'Zeil when he was available to issue the prescriptions to Rush. There is no doctor shopping between these two judges -- I mean doctors.

Want to hear the third doctor? He's Dr. Del'a Cruz (sp?), of Los Angeles. He works at the House Ear Clinic. Rush went there, because six months prior to losing his hearing, he sought treatment. And then he was treated by another physician, who was there for his hearing loss - ah - that's it! That's the doctor shopping they got!

Now, no judge hearing this before this search warrant went through, would have accepted the argument that there, on its face, that there was a potential violation of this so-called "doctor shopping" statute."

Curtis: "All right. Well you've answered most of the questions that I know I and others had as there continues to be comments from Black who is representing Rush Limbaugh. I appreciate your insights Mark Levin."

A Pharmacist named "Herb" then calls in, and Curtis questions him about what he is required to do (in the way of reporting it to the authorities) if he suspects someone may be "doctor shopping" in order to obtain more and more prescription drugs.

Mark Levin then called back in to the show.

Curtis: "Alright, well Herb, on the line, we actually have counsel. Ah, Mark Levin -- we had just heard from him -- wanted to just engage you on something you said. Are you there Mark?"

Mark: "Yes. Yeah, here's the problem, Herb."

Herb: "Ah huh."

Mark: "They're investigating 'doctor shopping', OK? You're saying, 'well the real legal problem is, they are investigating 'doctor shopping'. Now why do you think they're doing that?

Herb: "They are investigating it, or they aren't?"

Mark: "Yes. They ARE."

Herb: "Well, because basically, to me as a pharmacist, I would say this person who was doing the doctor shopping, has a big problem."

Mark: "No, no, that's not why. Because the entire other part of their so-called case, doesn't exist any more.

The maid sold her story. The maid was an alleged extortionist. The maid's husband was a convicted drug pusher. Where is this drug ring? Where is the money laundering? Those are all apparently, dead ends.

So now, they are doing what we call, 'paper shopping' by looking at these doctor's records. And if you heard what I said earlier on this program, you would have heard the backgrounds of these four doctors, and how on its face, it's absurd."

Herb: "Well, you know, anywhere in the United States, unfortunately, you can always find physicians -- there is always those few rotten apples in the barrel ..."

Mark (interrupting): "But Herb, you've switched positions. You called Curtis and you said, that's not the issue, who wrote prescriptions' - but where did he buy the drugs?"

Herb: "Right."

Mark: "I just explained to you why that door's locked. And now you're coming back around the corner and you're trying to argue, there's a few doctors out there who will always write prescriptions -- that's NOT "doctor shopping".

Herb: "Well, let me just say, I'm not a lawyer. I don't know all the intricacies of what you're saying as far as physcians, but my position is, that, and I listen to Rush quite often .."

Mark (interrupting): "I'll tell you what was said in court... I'll tell you what was said in court ...."

Herb (interrupting): "No, no, my position is, that it was very poor judgement on Rush's part to go ahead with this thing. I don't care if... "

Mark (interrupting): "I think everybody knows that. Rush got a addicted to pain killers. Now, we're beyond the (garbled ?lecturing?). He went to rehab. This prosecutor apparently has never gone after a first-time addict after he's gone to rehab. You don't have to be a lawyer to figure this out. You don't have to be a pharmacist to figure this out."

Curtis: "All aright Mark, I'm going to have to let you and Herb go now .."

Mark: "Alright. My honor."

[TheConservator]

Good post

[Howlin]

This prosecutor apparently has never gone after a first-time addict after he's gone to rehab.

Are we pretending that Rush went to rehab all on his own and then the prosecutor went after him? You're not seriously contending that Rush didn't go to rehab because he was outted, are you?

[snopercod]

Interesting. I got my information from Fox News Channel last night who said, "No subpoena was ever issued".

[snopercod]

Thanks for your detailed reply. I apologize for being a little snippy in my last post.

I see no reason to go "private" with this discussion. After all, it goes to the heart of the issue with Rush's medical records.

It seems that the records were siezed via a search warrant rather than a subpoena. [NY Times] As you know, any bozo magistrate judge can issue a warrant. In fact, in my state, they are required to issue a warrant upon any complaint by anybody.

In his order, Judge Jeffrey A. Winikoff of the state's 15th Circuit Court in Palm Beach County said the records had been obtained by search warrant rather than by subpoena, before giving Mr. Limbaugh an opportunity to object "and allowing time for a hearing to be held."

"The court knows of no less intrusive means to obtain the clearly relevant information than the methods the state employed here," the judge said, adding that the court "specifically finds that the state acted in good faith."

And from Rush Limbaugh Tries to Keep Medical Records Sealed

In Florida, search warrants typically become public record 10 days after they are executed, and the four warrants in the Limbaugh inquiry became national news Dec. 4. The warrants named the doctors from whom the records were seized as well as listed hundreds of pain pills prescribed to Limbaugh in a six-month period.

[snip]

Limbaugh's attorneys contend that Florida law allows for the subpoena of medical records in criminal and civil cases only after the patient has been notified and given an opportunity to contest it in court. The search warrants provided that prosecutors couldn't review the medical records until approved by a judge.

From [Univ. of Miami]

authorization of disclosures, and exceptions (Florida)

In general, a records owner may not furnish a patient's medical records to, or discuss the medical condition of a patient with, any person other than the patient or the patient's legal representative, or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.

However, medical records may be furnished without written authorization under the following circumstances. (Note that "consent" is a synonym for "authorization" here, even though these terms refer to two very different sets of processes and requirements under HIPAA.)

• to "any person, firm, or corporation that has procured or furnished such examination or treatment" with the patient's consent;

• when a "compulsory physical examination is made" pursuant to the Florida Rules of Civil Procedure, "in which case copies of the medical records shall be furnished to both the defendant and the plaintiff";

• upon "the issuance of a subpoena from a court of competent jurisdiction" in a civil or criminal action, "and proper notice to the patient or the patient's legal representative" is made by the person seeking the records;

• for "statistical and scientific research, provided the information is abstracted in such a way as to protect the identity of the patient, or provided written permission is received from the patient or the patient's legal representative";

• when "compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given" related to a medical negligence action or administrative proceeding. (FL Stat 456.067)

If true, it doesn't seem like HIPAA acted like a "floor" in this case, but rather a "ceiling". (From the viewpoint of the patient, of course.)

The other explanation is that the Palm Beach County DA broke the law, and a Judge let him get away with it. The appeal should be interesting.

The 2003 Florida Statutes Title XXXII, Chapter 456.057 clearly states that a subpoena is required, unless there is some exception in there that I haven't found:

Ownership and control of patient records; report or copies of records to be furnished.--

(5)(a) Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:

[snip]

3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.

[snip]

(7)(a)1. The department may obtain patient records pursuant to a subpoena without written authorization from the patient if the department and the probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has excessively or inappropriately prescribed any controlled substance specified in chapter 893 in violation of this chapter or any professional practice act or that a health care practitioner has practiced his or her profession below that level of care, skill, and treatment required as defined by this chapter or any professional practice act and also find that appropriate, reasonable attempts were made to obtain a patient release.

[snip]

Clearly, Rush's lawyer was correct. This last statute was violated by the DA. No attempt was made to obtain a patient release, and no subpoena was issued. Any thoughts on why the Judge let this pass?

[Labyrinthos]

but I do not agree with you that Rush is guilty of criminal activity.

I hope you're right, but the "blame the prosecutor, I'm a victim" mentality is typical among the defendants that I've represented over the years, particularly among druggies. I was one of the first persons around here to suggest, in response to the rumors, that Rush might in fact have a drug problem, and of course I was called memeber of DU and worse. Mark my word right now -- if he is charged with a crime -- and that is a big IF -- Rush will cop a plea and still complain about he is the victim.

[snopercod]

bump