BLACK: First, statement about <a target=new href=”//pdf/4D03-4973.pdf”>the court’s decision</a> today, then we’ll take a few questions, because obviously we have a lot of work to do because of this. At the end of this we’ll also hand out a press release that will give you detail, that will present our viewpoint, that’ll assist everyone in their — hopefully in a lot of their positions. It’s our position that the majority judges, the two judges who ruled against us went with what is a traditional law enforcement powers of a search warrant. They did not recognize the emerging Right to Privacy that is recognized under a series of new legislation and constitutional changes. First of all, the voters in Florida passed a constitutional amendment, which is … <a target=new href=”http://www.flsenate.gov/Statutes/index.cfm?Mode=Constitution&Submenu=3&Tab=statutes#A01S23″>Article 1, Section 23</a> of the Florida Constitution giving a Right to Privacy.
There are two medical privacy statutes that have been passed by the legislature and the federal government as well as passed a medical privacy law. Judge May in her dissent clearly recognized this, said that the majority was not recognizing what is now the trend, that medical records are treated different than any other kind of evidence that is seized by law enforcement, and while law enforcement obviously has certain powers, nevertheless the legislature, the voters, and Congress have limited that when it comes to medical records. At the end of the majority opinion, the court says that we can go back to the court and in essence ask the court to go through the records to weed out which ones are relevant from which ones are irrelevant. As the court notes in its opinion, the doctors released all their records rather than the records just requested under the search warrants. This is the reason, the exact reason why, we have the medical privacy statute.
What the statute says is that everyone’s medical records are considered confidential and may not be released without the patient’s consent. However, as an exception to that, if a subpoena is issued with notice to the patient, then the court can determine in advance of seeking the records which records relevant. What we have in this case is we are now trying to unring the bell, which is really impossible to do because the police have already looked at all the records and looked at records which they have no right to look at; and, unfortunately, by not following the procedures set out by the statute, we have received a wrong that we said in advance was going to happen, and that’s basically our position. We are going to seek en banc review by the Fourth District Court of Appeal asking all the judges to review this decision; and then if we are not successful there, we intend to appeal to the Florida Supreme Court. If anybody has any questions, I’ll be happy to answer them.
REPORTER: You said unring the bell —
BLACK: Yes.
REPORTER: You can’t do it.
BLACK: Yes.
REPORTER: Why are you here?
BLACK: Why am I where?
REPORTER: You said, “You cannot unring the bell.”
BLACK: Yes.
REPORTER: So where do you go?
BLACK: Well, as with anything in the law, what you try to do with a set of precedents so it doesn’t happen again, whether it may be ? and I can cite many different people regarding this. So my client wants to not only enforce his own rights, but he thinks this is of great public interest and wants to continue this fight to get a final resolution by the Florida Supreme Court, and he wants a statement by the court that medical records cannot be seized by prosecutors without going through notice to the patient and having the patient have a right to object to the records being produced. So it has a lot of value, even though, you’re right, we know that the investigators have already read all this. In fact, they read all the records before we appealed. But nevertheless, that is not a reason to give up, because once we do that, we just allow the state to use their powers however they want, and if we never object to it, then we give up a certain portion of our rights, and I certainly don’t want to do that, and nor does Mr. Limbaugh.
REPORTER: You trusted on these records going out (unintelligible) amongst people and you know what another (unintelligible) got ’em and hell, you know they won’t. How do you trust these people?
BLACK: Well, right now the other side does not have them because when we filed the appeal, the Fourth District ordered that the records be turned over to the court — to the court — where they’re placed under seal. The question now is: When, if ever, will they be given access to the records to do what they want with them? Right now, the stay is still in effect, and we will ask that it be continued until there is a resolution of them. Right now we are only in the interim stage of these appeals because we have remedies left to enforce, and we intend to vigorously enforce them.
REPORTER: Precedents to state statutes and federal law that would protect medical records obviously would have to rely on law (unintelligible) can you still get medical records (unintelligible) and how to do that?
BLACK: Sure. Here’s the difference. The court, in its opinion, characterizes the Florida statute as a subpoena statute, meaning that it only applies when a subpoena is issued. I believe the court has made a fundamental error in reading the statute because the statute — I know this is not going to be useful for your broadcasts — but <a target=new href=”http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0395/Sec3025.HTM”>395.3025</a> is encaptioned “Patient and personnel records,” and Subsection 4, and I’ll read it to you, says “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 consent,” and then it gives a number of grounds in which that can be done. One of them, subsection (d), says that “in civil and criminal actions, upon issuance of a subpoena with notice to the patient and a right to have a hearing.”
So what the court has done is taken the exception and said that that’s the law, whereas it’s the other way around. The rule is, the records are confidential and private and cannot be released without consent — period. That’s what the Florida legislature passed. As an exception to that, certain physicians can obtain it, the Department of Health can get it to monitor Medicare or Medicaid billing; and, in a civil or criminal action, either party can get them using a subpoena, but you have to first give notice to the patient so the patient can object to it. So what we’ve now done is the exception has become the rule, and we now have the tail wagging the dog — and, unfortunately, I believe that the opinion is fundamentally wrong in its interpretation. This is not a subpoena statute; it’s a medical records confidential statute that allows records to be released without consent only upon the issuance of a subpoena. Yes?
REPORTER: (Unintelligible)?
BLACK: Well, I’ve made numerous statements about that in the past. I believe this whole investigation into alleged doctor shopping is fundamentally flawed. I don’t believe there is any violation of the law here, and people ask, “If there’s no violation of the law, then why don’t you let them do what they want?” But you should not be required to give up your right of privacy, and no one in this country has the burden of proving yourself innocent. So I believe that Mr. Limbaugh and myself both vigorously want to interpose his rights, and do I believe that there is a political motivation here? I’m only a lawyer, and I don’t want to draw those conclusions, although there are those who are willing to do so. Yes?
REPORTER: Are you surprised by the ruling?
BLACK: To be honest with you, I am surprised, because I thought the law was pretty clear. What happens is that what the court said is there’s no mention of search warrants in this statute, so therefore that means the state can still use search warrants rather than the subpoenas. But by not mentioning search warrants, in essence what the Florida legislature has said is that the search warrants cannot be used to get medical records at all, and I believe that is the only interpretation there can be of the statute. I mean, it seems pretty clear to me, but of course I am biased. But certainly that’s why we want to go to the entire court and to the Florida Supreme Court, because I think this is a very important issue. I think it’s not only an issue for Mr. Limbaugh, but every other medical patient who resides in this state.
REPORTER: How long will this process take (unintelligible)?
BLACK: It’s hard to answer that question because when you petition the court for rehearing, they could either decide it quickly or, if it goes to the entire court, it could be a much slower process. Obviously petitioning the Florida Supreme Court is the same. You file a petition; you ask them to review it. They may decide that quickly, but if they grant review, then the process will be much longer. As you notice that this opinion is released almost six months after our oral argument, and it’s not really possible to estimate the time period that appellate courts will rule in, because there are many things that go into opinions, and it takes judges a while to do the research and the examination and the writing, and so it’s very hard for lawyers to predict the length of time for any particular decision on appeal.
REPORTER: Would you go beyond the Florida Supreme Court?
BLACK: I’m sorry?
REPORTER: Would you go beyond the Florida Supreme Court?
BLACK: I don’t know that we would have rights to go to United States Supreme Court because this is an interpretation of a state statute, not a federal statute, and I don’t know that the United States Supreme Court would necessarily accept to review a Florida Supreme Court decision on one of its own state statutes. It’s not inconceivable, but it would be extremely rare to do so.
REPORTER: (Unintelligible) those records (unintelligible)?
BLACK: Right now the records are still sealed. They will be so until the court’s opinion is remanded down through the lower court. However, we will request that the state continue pending our appeal, either our en banc review or the appeal to the Florida Supreme Court. Obviously we can’t agree to have them examine the records and then continue on with the litigation saying they shouldn’t have the right to read them.
REPORTER: (Crosstalk)?
BLACK: We have 14 days, I believe, to file them, or is it ten days? I don’t know. Either ten or 14 days.
REPORTER: We all heard what Rush Limbaugh had to say today, but when you talked to him, tell us his reaction. What did he say to you (unintelligible)?
BLACK: Well, to be honest with you, he was very calm about it and just asked questions, some of the same questions that are being asked here, about, you know: What the different judges say? What’s the import of it? What’s our next step? and he asked, you know, very intelligent questions, and, you know, I have to marvel at Mr. Limbaugh because I read his <a target=new href=”//home/daily/site_100604/content/rush_s_statement_on_4th_district_court_of_appeals_ruling.member.html”>statement that he made</a> on the radio today, and it’s, quite frankly, even though I only talked to him for a short period of time, I think he summed it up fairly accurately.
REPORTER: Is he still going to any kind of treatment, still to this —
BLACK: No, he has completed the residential treatment. He still has outpatient treatment that he goes to.
REPORTER: Is the outpatient like a AA, the same sort of thing?
BLACK: Well, he has his own private physician. The problem is it’s very hard for someone in his position to go to public meetings and what have you. There would be 42 books written if that was the case, so…
REPORTER: Is there a chance that you might pull a Martha Stewart here? Not pleading guilty to anything anything, but you know you’ve what, hell. We’ve been through this so long through this so long, it’s been in the news let’s get this thing on and get it. Is there a chance he could pull one of those like she pulled out of her hat?
BLACK: Absolutely not. You know, you can — it’s very hard to predict the future, but he has made it clear to us from day one that he, first of all, did not commit any offenses; he did not commit the offense of doctor shopping, and he’s tried to make that, or we’ve tried to make that clear many times, and not to go into the whole case, but there are four doctors they claim he’s shopping, two of whom were partners and one of whom was substituting during a vacation! I mean, to put that in a warrant and say that we ought to be able to seize the records because when one partner is on vacation his partner steps in and handles the patient, to me is the height of absurdity, and it shows what little research and investigation went into this case in order to do that. The third doctor handles his implant for his deafness out in Los Angeles. I can assure you he didn’t go out there and have an implant put in his skull in order to get a prescription. I think he got two prescriptions from this doctor because of his treatment.
So I think the underlying charges have no merit whatsoever. But — and I make a very big “but” here — the records that they seized have many of his treatments that have nothing to do with this, that if disclosed, would certainly be embarrassing for anyone to go into. He had a number of surgeries, a number of procedures that go to intimate parts of his body that nobody, let alone someone in his position, would want to be publicized, and certainly I would not want to, and that’s one reason why he’s so fervent about proceeding ahead with this, because, in his position, you know, when you have the kind of platform that he does, well, you know, you do things on other people. He doesn’t want to give them his medical records because he’ll be hearing about it for the next ten years. So he’s highly motivated not to have his medical records out in public, and I don’t think any of us would particularly want that.
REPORTER: Do you think it’ll lead to further charges?
BLACK: Well, he hasn’t been charged with anything.
REPORTER: (Garbled)?
BLACK: Well, I personally don’t think that there’s any basis. That’s why I went through the explanation about the doctors. I don’t think there’s any basis about this charge of doctor shopping. Doctor shopping was created to prevent people from going to multiple doctors and reselling medication and/or giving some people — almost all the cases are like that — and this is certainly not the case here.
REPORTER: (Garbled)?
BLACK: No. I have — other than litigating matters, they have enormous powers of discretion in what they can investigate and what they can do that, you know, they have tremendous powers. The search warrant power is an extremely broad and powerful tool. It is the most powerful tool that police and prosecutors have, and one of the reasons we’re here is to try to limit that when it comes to medical records.
REPORTER: The prosecutor said no charges have been filed. You say no charges have been filed. But has the prosecutor’s office talked to you since this ruling (unintelligible) that OK…
BLACK: No, we have not had any conversations at all.
REPORTER: Are there charges imminent?
BLACK: No, I’m sure they are not. They don’t even have the records. Once they get the records, they’ll find out there’s no case. But putting all that aside, I don’t believe there will be charges, whether imminent or sometime in the future, because there’s simply no basis for this charge or this investigation of doctor shopping.
REPORTER: (Unintelligible) Mr. Limbaugh has not been charged with a crime (garbled)?
BLACK: Yes.
REPORTER: But we look at some of this stuff…
BLACK: Look at the repeat of his prior press release.
REPORTER: Exactly, and that’s what I’m going to. This is a repeat of who’s saying this stuff as opposed to, you know, being bold about one doctor doing this trying to prove Mr. Limbaugh’s drugs. Do you think they’re being caustic right now because they see they don’t really wrapped up and the last thing we want is to be ? or, or what?
BLACK: The term, to use an adjective like “scrupulous” just belies the record in this case. If you were scrupulous, you would have followed the statute. The statute sets out the procedure. By having search warrants and going into your doctor’s offices and, you know, with armed police officers, it’s not “scrupulously” protecting your rights. Just imagine this, that if for some reason they served a search warrant on your doctor’s office and they go in there and seize all the doctor’s records, where all these people are in the waiting room, all the nurses are there, the medical personnel and your doctors. You call up the next day and ask for an appointment and see how well they treat you the next time you come around. That’s one of the reasons we have this, because it’s a very sensitive relationship between a doctor and a patient. No doctor wants police officers coming in while they have people in their waiting rooms and seize someone’s medical records. This is a very embarrassing thing, not just for the patient, but for the doctor, and that’s one reason why we have a special kind of procedure when it deals with medical records. And —
REPORTER: Everyone’s medical records?
BLACK: This statute was passed in — let’s see. I don’t know if I have the date. The problem is this statute has been amended several times. I believe it was in the mid- to late 80s that this was amended to grade these procedures. I can get you — if you call my office, I can get you — the exact date, but off the top of my head I can’t tell you.
REPORTER: Can you walk us through again the timeline and (garbled).
BLACK: All right. Right now I have either ten or 14 days to file a motion for rehearing. What we will be doing is filing the following procedures: a motion for rehearing by the panel. That’s the three judges who made this decision, a motion for a hearing en banc that means all the judges of the Fourth District, asking them to review the case, and I’ve also asked them to certify a question to the Florida Supreme Court — (cough) excuse me — asking whether or not the search warrant statute can trump the medical records privacy statute. Then, depending on what happens with that, if I do not have any remedy on those three requests, then we will file what’s called a petition for writ of certiori with the Florida Supreme Court, asking them to review this case for two rounds, and you have to be very specific on this. Number one: It’s a question of great public interest because you’re dealing with a constitutional right that was passed by the Florida voters. We have the legislative right by the Florida legislature, and secondly, that the Fourth District’s opinion conflicts with opinions, a recent opinion by the Third District Court of Appeal, and by
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