Posted on 12/23/2003 7:42:00 AM PST by Hillary's Lovely Legs
WEST PALM BEACH, Fla. - Prosecutors can examine Rush Limbaugh's medical records to determine whether he should be charged with "doctor shopping" for prescription painkillers, a judge ruled on Tuesday.
Palm Beach Circuit Judge Jeffrey A. Winikoff denied the conservative commentator's request to keep the records sealed.
Limbaugh's attorneys had argued that the seizure of the records from doctors in Florida and California violated the radio host's privacy. Investigators obtained the records last month after discovering that Limbaugh received more than 2,000 painkillers, prescribed by four doctors, at a pharmacy near his $24 million Palm Beach mansion.
Doctor shopping refers to looking for a doctor willing to prescribe drugs illegally, or getting prescriptions for a single drug from more than one doctor at the same time.
The Palm Beach County State Attorney's Office began investigating Limbaugh last year, after his former maid told them she had been supplying him prescription painkillers for years.
Limbaugh recently admitted his addiction, stemming from severe back pain, and took a five-week leave from his afternoon radio show to enter a rehabilitation program.
I understand now that HIPAA wasn't the culprit here, since the Florida Statutes preempt HIPAA in the area of medical privacy. (I still believe that HIPAA is very permissive in the area of privacy.)
In this case, if doctor-shopping is against the law in Florida, I would be stunned if Rush's medical records were undiscoverable.
Absolutely, but according to the Florida Statutes I posted, discovery must be by subpoena, and then only after attempting to obtain a release from the patient.
The DA and the Attorney General of Florida broke the law - a much more serious crime than what Rush did in my book.
When the story about Rush's addiction broke, I did discover some amazing coincidences regarding the House Ear Clinic and the LA Times running an article on drug addiction causing hearing loss immediately thereafter. (I posted all that stuff, but it's in the memory hole now and I have no idea how to find it again.)
That article is still available without charge on the LA times website, although they normally charge for archived articles after two weeks. I still find that curious.
It would be interesting to research the origins of the Florida law on doctor shopping. All it would take would be one congressperson getting a phone call from the DNC to get that ball rolling.
Have you checked Florida case law on the production of medical records? I haven't yet, but might get a chance later today. From the transcripts I've read, it sounds like at least one Florida court decided that a search warrant is the appropriate vehicle for obtaining medical records in some cases -- but I'm not certain the state met the requirements for production by search warrant without notice. There has to be a real, dyed-in-the-wool healthcare attorney or med mal attorney (plaintiffs' or defense), with a Florida license, who can answer this question for us and cite a case or too.
I know that in Georgia, case law on the production of medical records in litigation is more complete than statutes. (Which, of course, could open an whole thread on why it's important that we not have a bunch of activist judges who decide to create law from the bench).
It wouldn't surprise me at all, since the Florida courts at all levels have a long record of ignoring the clear language of the law and doing what they damn well please.
Your other assumptions look correct to me. I believe it is routine for doctors to either ask what other medications a patient is taking, or give them a form which asks for that information.
And this Democrat Congresssperson calls up the Republican Speaker of the House and says, "Hey, I need a favor. I can't tell you why, but Florida needs a Doctor Shopping law. Pass one right away." And the Republican Speaker, having great respect for Democratic Congresspersons, obeys without question. Likewise, all the Republican legislators fall in line behind their Speaker, all eager to vote for a bill because a Democratic Congressperson asked for it. finally, the Republican Governor signs the bill, even though it may be used in the future against his own troubled child, because the DNC wanted it. And none of them knew they were actually voting for a law designed to bring down Rush Limbaugh, who the DNC already knew was engaging in a practice which this law would criminalize.
As conspiracy theories go, it's a winner!
"memory hole!" I think you've created an new "buzz word" for the aging baby boomers!!!
By the way, I remember you posting that stuff too and thinking that their interest in Rush's problems might someday be preverted to something sinister, or that they felt they were "on to something" that could lead to his demise! Eventually!!!
You aren't a conspiracy kook! You just know how to recognize ORCHESTRATION when you smell it!!!
Rush first announced his hearing loss on October 8, 2001.
S.640 was introduced in December 5, 2001 by Senator Locke Burt (R-Ormond Beach).
It passed both the Senate and House in March, 2002.
Here is the original article I posted regarding my LA Times conspiracy theory. Here is another one.
Here is the link to the LA Times article. Unfortunately, you now have to pay for it. (But it was free last October when the Rush addiction story broke.)
However, one of the transcripts I scanned yesterday on freerepublic included the DA's references to his authories -- seemed like it was a case that began with the letter "V." Can anyone point me to a transcript in which the DA states his authority for the seizure using only a search warrant? If so, then I will read the case(s), Shepardize them (i.e., look for other cases that cite them to see how they may have been later narrowed or broadened, or even overturned).
That said, Snopercod, the rest of this isn't for you, but represents just some of my general musings on this matter.
In this case, it wouldn't surprise me if the DA sees Rush's prosecution as a step toward his/her next political office, or even as revenge for Rush's conservative politics.
Notwithstanding that, and NOT saying that Florida law or the facts in Rush's case support it, I can see the logic for permitting a prosecutor to seize medical records with a search warrant IF the prosecutor can show the issuing magistrate/judge that the records are in danger of being altered or destroyed. In that case, it would make sense for the records to be sealed until a judge could rule as to their admissibility and the subject of the records could be heard.
There are situations where an individual's medical records SHOULD be discoverable -- like where someone you bumped in a fender-bender claims an injury and you demand proof of the injury in court. Another situation would be where the prosecution had evidence of "doctor shopping" that meets a minimum standard.
I'm not saying this was present in Rush's case, but I'm saying that everyone who seems to believe that medical records should NEVER be discoverable should re-think their position. Also note there's a difference between being discoverable and being free for broadcast to the media (although I think it likely that someone in the DA's office would leak Rush's records either out of political belief, because they were bribed to do so by someone who hates Rush, or because a sleazy news medium bribed them).
I believe in a nation of laws. Just because our system decided to be corrupt and not apply them to Ted Kennedy, Bill Clinton, Hillary, and others doesn't mean they shouldn't be applied to Rush.
Much of Rush's support on the site smacks of the kind of blind support Bill Clinton received. It's like listening to Elvis Presley fans talk about how Elvis "didn't do illegal drugs," when he obtained prescription drugs illegally through bogus prescriptions written for members of his TCB Memphis Mafia. Let's not forget that "Dr. Nick" prescribed 14,000 individual doses of amphets and 8,000 individual doses of barbs during the last eight months of Elvis's life, not to mention the prescriptions written in the names of Elvis's buddies, for Elvis.
Rush isn't in Elvis's league when it comes to illegally obtained prescription drugs, but I think he needs to be punished because that's exactly what I've said when the same thing happens to Hollywood's finest liberals.
A concept which subsumes that those laws will be applied equally and without prejudice.
Is justice blind if Florida? I think not.
Still waiting for a citation of any other "doctor shopping" case in Florida which has gone to trial.
Some jurisdictions, like Autstralia, are setting up prescription registries, which track all the prescriptions of controlled drugs. While that is a certain invasion of privacy, it prevents prescription fraud before it happens and keeps law enforcement from having to see the actual medical records to find a violation.
But what is the connection between the Times article and the passage of the bill in Florida? I see the bill was introduced in December of 2001, which is a couple of months after the Times article. The bill passed through two Senate committees, passed the Senate and the House and was signed by Governor Bush the following April. Florida is not the first state to pass a law against prescription fraud and there is ample evidence that this is a widespread problem. Noelle Bush, the Governor's daughter, was charged under another law wtih prescription fraud in January of 2002, while this law was under consideration.
I don't know when it was originated but the City of Orlando, which is not known as a place that Rsuh frequents, has a special prescription fraud unit. Drug Enforcement Division. The White House Office of Drug Control has a web page devoted ot the topic: DIVERTED SYNTHETIC OPIOIDS.
Point being that this is a widespread problem. A law against it need not have been crafted in order to prosecute a single individual. Even if it were, it seems to me extremely unlikey that the entire Florida legislature and governor would participate in such a conspiracy against a well-known supporter of their party.
Section 2. Amends s. 893.13, F.S., relating to prohibited acts and penalties under the controlled substances act, to enhance the penalty applicable to the existing offense for withholding information from a practitioner from whom a person seeks to obtain a controlled substance or a prescription for a controlled substance. Failure to notify a practitioner that the person has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the last 30 days is changed to a third degree felony punishable by imprisonment of up to 5 years and the imposition of a fine of up to $15,000. The offense is currently punishable as a first degree misdemeanor which carries up to one year of jail and a fine of $1,000, and any second or subsequent violation is currently punishable as a third degree felony.Staff Analysis, Health, Aging and Long-Term Care Committee (PDF)
A concept which subsumes [sic] that those laws will be applied equally and without prejudice.
Is justice blind if Florida? I think not.
Still waiting for a citation of any other "doctor shopping" case in Florida which has gone to trial.
I still believe in a nation of laws. I'm not naive enough to believe that is done all the time (or even most of the time), but it's hypocritical for conservatives to squeal about liberals getting a special deal but then suggest or demand that their conservative heros deserve a special deal.
For that reason, Rush should be treated no better and no worse than anyone else IF found guilty of the charges against him.
For those who are interested (and I apologize if I missed this in any of the earlier zillions of posts, the "doctor shopping" law in Florida (Florida Statutes 893.13(7)(a)(8)) provides:
"It is unlawful for any person . . . [t]o withhold information from a practitioner from 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 practitioner within the previous 30 days."
The law went into effect in July 2002. There are no appellate decisions yet -- which doesn't mean that nobody has been prosecuted. It just means nobody has filed an appeal based on this part of the law in a case where the appeal was accepted and there was a published opinion.
My understanding, based solely on what I've read in the news articles, is that there have been prosecutions under this law, but that those prosecuted under the law averaged 22 physicians (probably getting the pills for resale), while Rush is said to have contacted only four (two of whom were in the same practice).
If Rush did it, then he should be penalized -- he shouldn't get a free ride because Clinton got a free ride on so many charges. However, they shouldn't slap him with a larger penalty because of who he is. First-time violators of drug laws like this generally get probation in Florida, is my understanding.
Florida justice has shown itself over the past couple of years to be anything but just and inpartial.
That said, I'll fall back on mantra: I just entered this thread because so many people were blaming the seizure of Rush's records on HIPAA, and saying that HIPAA's privacy regulations make records incredibly easy to get. That is not true.
Will Rush get justice? No way. Some things suggest he'll get off lighter -- he's rich and powerful, and too many people think his celebrity (and the fact that those prosecuting him probably are being pressured to do so by Democratic officals) should permit him a free pass. Other things -- being perceived by the left as a pompous windbag (which he is, a lot of the time) and a dangerous trumpeter of the truth (which he is, a lot of the time), and being perceived as a hypocrite, cut against him and suggest he'll be nailed more than the Average Joe. I don't think those will even out -- one will win and justice will not be served. He'll either get off with a slap on the wrist that's too light for his alleged crimes, or he'll be pilloried far beyond the degree to which anyone else accused of this law has been punished. I think the likely result is he'll get off with a slap on the wrist, but that his medical records will find or have already found their way into the Democrat underground. It's darned hard to figure out who leaked things -- and holding the DA in contempt and fining him $1500 won't seal Rush's records again.
I wasn't suggesting that, I was suggesting that one or two members of the Florida legislature knew about Rush's problem. The rest would have just joined the bandwagon because, as you say, it's a nationwide problem.
Nice research.
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