Skip to comments.Rush's Statement on 4th District Court of Appeal Ruling
Posted on 10/06/2004 5:40:25 PM PDT by wagglebee
Now, ladies and gentlemen, before we get into the sterling and wonderful debate analysis that I have for you, let me address a bit of news involving me today. About 10:30 morning, the Fourth District Court of Appeal in Florida ruled that my medical records were legally seized by the state attorney's office here in Palm Beach County by search warrant. As you know, we appealed that seizure on the basis that the Florida legislature and the Florida Constitution. The legislature's history and the constitution here's right to privacy forbad a seizure by search warrant of medical records that instead a subpoena was required with participation by me to limit the search to whatever it was the state attorney's office felt was what they needed. We lost this decision today. We're going to appeal it further. We are deciding now exactly where but we will appeal it.
I had no expectations about this, so there's no, you know, disappointment or glee or exhilaration. This is just the next phase of this whole process. Now, what I would like for you to do for those of you out there that have been following this and want to get like a bird's-eye view to what has happened, we posted the decision in pdf format at RushLimbaugh.com and I would like to direct you to the dissenting opinion of Judge May. This was a 2-1 decision, a three-judge panel. Judge May was dissenting against the majority. She found for our side in this case. She used an interesting phrase to describe the majority. She said that they "went into this with their eyes wide shut." She said that the majority "went into this with their eyes wide shut." What were their "eyes wide shut" to?
In her opinion she states "the emerging trending of the privacy of medical records" As you know, the justice department has lost time and time again seeking medical records of women who have had abortions -- partial birth or otherwise. There have been other courts, both in this state and around the country which have found for the privacy of medical records. Judge May, in her dissent, refers to this emerging trend that the majority on the four DCA down here in Florida was blind to with "their eyes wide shut." Now, when you go read Judge May's dissent, pay special attention to footnote 13. I'm not gonna read footnote 13 here. I don't want to spend a lot of time reading it. It's legalese, but for those of you who understand legalese -- or even those of you who don't that want to try -- it's not all that complicated but you will get an indication of Judge May's mind-set on this with footnote 13 in her dissenting opinion.
Quite obviously we strongly disagree with the decision of the court majority because the majority does not recognize a patient's right to medical privacy that the Congress of the United States, the Florida legislature, and the citizens of Florida have granted to patients such as me. I want to remind everybody: I have not been charged with anything. This was a fishing expedition from the outset to see if there was anything they could find to charge me with, and so this next stage is a continuation of the appeal process. There was no "doctor shopping," but it was my contention all along that I shouldn't have to give up my right to privacy to prove my innocence. That's not the way it works in this country. So we're encouraged by the strong dissent of Judge May. She clearly recognized that the state cannot trump a patient's right to privacy in medical matters, and again we are going to seek further appellate review of this decision, meaning we're going to take it to the next level wherever we determine that is.
In plain English, ladies and gentlemen, despite the fact that the Florida Constitution and statutes specifically were passed to provide special protections to such information as medical records, especially the disclosure of such records -- I mean, it's one thing for law enforcement to be able to see them; it's another thing to be able to disclose them -- the majority in this case found none. Despite the fact the Florida Constitution and the statutes specifically were passed to provide special protections to such information as medical records, even the disclosure of such records to the public, the majority in this court found no such protection. It didn't even find a right to ensure that which is disclosed is only which is proper for the investigation. In other words, this court did not even agree that my medical records' privacy extend to not being disseminated by law enforcement to the media. Did not even find for that.
One judge, Judge May, did, in her dissent. So when I know more about our specific plan such as where the appeal will go -- there's some options, ladies and gentlemen. We could appeal for the entire Fourth District Court of Appeal -- that's called en banc -- or we could decide to go straight to the Florida Supreme Court and ask them to decide this, and this is all being determined even now. This just happened about 10:35 Eastern Time today, and let me assure all of you out there that this is just another phase in the process. There has been nothing going on the past six months. It's almost six months to the day that the oral arguments before the Fourth District Court of Appeal took place, April 7th. This is October the 6th. As such, nothing's been going on during this period of time as we've been waiting the ruling. The ruling is now out today.
There is a stay in place on the medical record. That's still a stay from the Circuit Court where all this started. It does not mean that the state attorney's office can now immediately dig into those medical records. They are still safe and protected and they cannot be seen, and that will continue to be the case for quite some time as the appeals process marches on here in the United States of America and specifically in the state of Florida. So let me reassure you nothing's really changed here. This may be cast as a victory for the state in the media and in the legal community. In a strict sense, you'd have to say that the state has won this round. This is not yet a victory for the state. We will continue to fight this as we have fought it all the way.
The issue here goes beyond me, actually. It goes to the privacy of everyone's medical records. If this became a precedent, then no one's medical records would be private. If any law enforcement agency suspected, just wanted to go -- in fact didn't even suspect, had the desire to go -- fishing to find some evidence for a crime. So we're going to fight this as far as we can, and again: Everything is cool. Everything is fine. Another stage and step in the process here has taken place, and what it ultimately means is, ladies and gentlemen, is that we are that much closer to the end. We are now getting closer to the end. We are getting close to closure, as some people like to say, as we've finally now taken the next step.
(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to:
(d) 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 by the party seeking such records to the patient or his or her legal representative.
I underlined part of section (d), since the FL court apparently didn't see it.
Am not particularly a Rush fan, but your vitriol is uncalled for.
Where is your proof on Rush's alleged statements about drug addicts?
I am no way up to speed on this issue and have not read the opinion but, with that said, the snippett of FL which you posted said in section 4 "may" (as opposed to a word like shall or must).
Traditionally, the government does not need to seek info about criminal activity by subpoena. The Gov useds a search warrant (as in this case) based upon a sworn oath which establishes probale cause to find evidence of criminal activity.
The "may" language does not seem to preclude the use of a search warrant.
Sorry about the typos; I was being inturrupted while typing.
I echo your thoughts Shannon. Rush, under any circumstance should get a pass. It doesn't matter what he's said in the past, he's just an entertainer. We need to support him under any circumstances.
So you mean that Rush and druggies should not even defend themselves in court????
It looks like she won't be staying around . . . too bad.
"must not be disclosed"
May does not have the connotation in this sense that you are giving it.
There are really two issues here. One is Rush's right to due process under the law, and the right to defend himself.
The other issue might be called the moral issue, and that revolves around the difference between becoming addicted to a prescribed medicine, and becoming addicted through recreational use.
Once again we see the face of moral equivalence.
"may" here describes that disclosure "may" be made without consent "Upon the issuance of a subpeona"
ie "provided that a subpeona is issued" that disclosure may happen
jmho - INAL (he he)
For years Rush said that those who illeglally use or deal in drugs should go to prison, for a very long time. He had no sympathy and supported the war on drugs completely.Gimme the dates upon which he supposedly 'spoke' on this subject (back to '98 anyway) -
- and I'll get them on the 'net in RealAudio format ...
I'm no legal beagle, but doesn't this violate HIPPA (sorry, I cannot remember the initials) somehow?
If so, doesn't this become a FEDERAL issue, and not a state one?
ie "provided that a subpeona is issued" that disclosure may happen
That's how I read it. Otherwise, what 395 would do is provide more options for the State of FL to obtain medical records.
The whole point of 395 was to help safeguard medical privacy.
That was a question I had in another thread. HIPPA was passed federally to protect the privacy of virtually anything related to a patient's medical record/history unless the patient ok's release. A hospital can't tell anyone you are in the hospital unless you ok it. If they screw up, you can sue and the hospital can be fined. We've had many inservices on this. I don't understand how Fla. thinks they can get around this if no charges have been filed or supoena issued?
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