Most critical, and at stake, is the ability of patients to safely obtain pain medication for chronic, persistent pain. Medical Boards instruct physicians that “tolerance and physical dependence are normal consequences of sustained use of opioid analgesics and are not synonymous with addiction” But this advice has not penetrated deeply even into the medical community. Much of the general public, and most of the media, still equate physical dependence and addiction, which is completely unfounded. Even many pain patients, lacking factual counseling by their doctors, misperceive themselves as addicted. Mr. Limbaugh was one of them.

They have not been taught that when properly prescribed and taken as prescribed, OxyContin and all the opioids are effective medications for moderate to severe pain. They have only been exposed to the Media, which hyped the dangers (without mentioning that these almost always occur only when the drugs are abused) and caused a hideous stigma to be attached to those who take Opioids, especially OxyContin, legally or illegally.  Out of prejudice, Pain patients who take opioids are assumed to be addicts. The stigmatization of OxyContin is even greater.  Pain patients have lost jobs simply on the strength of employer awareness that they take OxyContin.

The Limbaugh matter perfectly exemplifies this phenomenon of  “pseudoaddiction.”  Any person who has untreated or under treated pain will set out to find adequate pain relief. And what we force them to do is then labeled “drug seeking behaviors” - including “doctor shopping” and purchasing on the illegal market (in the same way that both real addicts and drug diverters do.) The difference is that, unlike addicts, when they can find a way to adequately treat their pain, their ability to function and the quality of their life improves dramatically. The Amici (NFTP, APF and AAPS) are confident that Mr. Limbaugh is a pseudoaddict. His obvious ability to function belies true addiction.

Patients are driven to Pseudoaddictive behavior in reaction to the harsh reality of the prescribing climate in Florida and elsewhere in the United States. Under treatment, in turn, is a product of the opiophobic environment and law enforcement mind set.

Faced with real dangers, Doctors are afraid to prescribe opioids to therapeutic levels. Even worse, doctors are now being arrested and jailed when patients lie to them about doctor shopping, or about drug abuse or diversion and selling or injecting their medications, and particularly when someone dies from a drug overdose.

The law-enforcement mind-set works to the great detriment of patients.  Doctors are not fools.  Rather than risk their professional licenses or personal freedom, doctors routinely refuse to prescribe opioids to patients even when they know they would profoundly benefit from them.  And even those who will prescribe frequently self-impose a dose limitation that falls short of therapeutic levels for the individual. These choices are ethically and clinically wrong - but the chances are good that a doctor who puts his patient first may be putting himself in danger.  
Legislative and Medical Board actions accepting and encouraging doctors to use opioids for chronic pain are virtually worthless in a context of punitive and ill-informed law enforcement. Physicians can read the papers and the risks are real. Physicians are meant to be healers, but fear their patients’ misdeeds, and now must fear criminal prosecution. Patients are meant to be treated, but relief is rationed out of physicians’ fears.  Law enforcement is dogging the heels of both.  

The state needs to do everything it can to resolve this issue in the favor of its patients.  Doctors should be able to ask freely important questions about a patient’s background and patients should be free to talk without fear that they will be investigated for “doctor-shopping” and worse.  

Doctors will ask less and patients will tell less if warrants such as those employed in the Limbaugh case are allowed to stand.  
PERMITTING LAW ENFORCEMENT ACCESS TO THE MEDICAL RECORDS IN QUESTION IS AN INAPPROPRIATE AND UNPRECEDENTED USE OF THE “LAW ENFORCEMENT” EXCEPTION TO MEDICAL RECORDS PRIVACY.

It is bedrock that Article 23 of the Florida Constitution creates this privacy in Florida.  The protection exceeds that offered by the federal Constitution. The right cannot be invaded except to further another compelling state interest and then only if the least intrusive manner is used.

In the Limbaugh Case, the amici believe that law enforcement interests Do Not Outweigh Privacy Concerns. Privacy is a fundamental right in Florida and every state in the union. Medical records privacy goes back to the Hippocratic Oath.  It is integral to the American Medical Association’s ethical code. It is also the subject of specific statutes that set out precisely the means that the state must use if it wishes to subpoena medical records.  
In Florida the state did not even try to claim that it followed these procedures. In fact, even after Mr. Limbaugh protested the failure to use the statutory procedure on December 2, 2003, the state made a second seizure on December 5 — again disregarding the statutory procedure. The state also took the unusual step of making a public record out of Mr. Limbaugh’s pharmacy records and the identities of his doctors.

Florida Statutes Encourage Doctors to Treat Pain. The factors just discussed lead to a situation in which pain is rampant and doctors are unwilling to treat it using opioids. Frustrated at the situation in which good medications were not being used, the Florida legislature passed the Intractable Pain Act, F.S.A. §458.326 (1994)(“IPA”). The IPA assures physicians that if they act with intelligence and integrity they should feel safe treating chronic pain with opioids when appropriate.  Doctors still hung back.  So, in 2000, the legislature required doctors to treat pain or refer patients to pain experts. FLA. STAT. ANN. § 765.1103 (2000).   At the same time, nothing in the statutes, medical board guidelines or other source applicable in Florida, denies doctors the ability to treat pain even in patients with a current or past history of substance abuse.

When the Crime is Victimless, no Compelling State Interest exists. Although Florida’s courts have been willing to balance privacy against the state’s interest in investigating crime, they have never done so in a case in which the crime itself was victimless.  To the best of our knowledge, invasion of medical records privacy held by a physician or hospital has never occurred except in investigation of crimes involving the death of innocent third parties.

The Limbaugh case is a dramatically different situation. We have a class three felony (doctor shopping) that has no suggestion of third party injury or intent to injure. For example, there is no allegation that Mr. Limbaugh was being investigated for doctor-shopping in order to sell the pills for gain or to give them to anyone else. His only known purpose was to secure medication for serious chronic intractable pain.  For Amici, this is a critical distinction and should change the balancing equation.

The Trial Court’s finding that the state acted in good faith was incorrect.  So, for all these reasons, The NFTP was willing to take the lead in this amici curiae pleading in the Rush Limbaugh case. The issue is not whether we support his political and social views. There are extremely important issues involved in the case - that threaten to set precedents that will horribly affect all pain patients, their families, and their physicians.

For these reasons we have posted the full text of the Pleading, for all to learn. Read it carefully and appreciate the excellent work of Ms. Mary Baluss.

J.S. Hochman MD
Executive Director
NFTP

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA
FOURTH DISTRICT

RUSH LIMBAUGH,

Appellant,

v.                                      CASE NO. 4D03-4973

STATE OF FLORIDA,

Appellee.

(On appeal from the 15th
   Judicial Circuit of Florida in
and for Palm Beach County)
_____________________________________________/

BRIEF OF AMICUS CURIAE

THE NATIONAL FOUNDATION FOR THE TREATMENT OF PAIN AND  THE FLORIDA PAIN INITIATIVE

In Support of Appellant

MARY BALUSS
THE PAIN LAW INITIATIVE
2850 ARIZONA TERR. NW
WASHINGTON, D.C. 20016
(202) 244-0710

ATTORNEY FOR AMICI CURIAE
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES    II
I.    SUMMARY OF THE ARGUMENT    1
II.    THE INTERESTS OF THE AMICI    2
III.    ARGUMENT    4
A.    Pain Is a Serious and Largely Unnecessary Public Health Problem in Florida.  Use of Appellant1s Medical Records Will Make a Bad Situation Worse.    4
1.    Pain Creates a Devastating Situation for the Sufferers and Those Who Care For Them.    4
B.    Chronic Pain is Costly to Society.    6
C.    Untreated Pain is Widespread in Florida.    6
D.    Opioids Are Effective For Chronic Pain but Seriously Under Used    8
1.    Fear of Addiction    8
2.    OxyContin Hysteria    9
3.    Prescribing Physicians Fear Regulatory or Criminal Sanctions    10
CERTIFICATE OF SERVICE    20
CERTIFICATE OF COMPLIANCE    20
TABLE OF AUTHORITIES

Page(s)
CASES
CONSTITUTION AND STATUTES
Florida Constitution, Article 23..............................
46 Fla. Stat. § 893.13 (7)(a)(8)    2
FLA. STAT. ANN. § 395.3025(4)(d)    1
FLA. STAT. ANN. §456.057(5)(a)(3)    1
MISCELLANEOUS
American Pain Foundation, Facts About Pain, available online at www.painfoundation.org [accessed 10/28/03]    7
American Pain Society, Chronic Pain in America: Roadblocks to Relief, available at www.ampainsoc.org [accessed 10/10/03]    8
Bernhoff, R., How We Can Win the Compassion Debate, Citizen Magazine (June 24, 1996)    6
Brookoff, D., Chronic Pain I: A New Disease? Hospital Practice, McGraw-Hill Companies(2000), online at
www.hosppract.com/issues/2000/07/brook.htm [Accessed 10/28/03]    6
Stuart Davidson, Pain and Opiophobia, 40 Healthcare Forum J. 64 (May/June 1997)    5
Kathleen M. Foley, The Relationship of Pain  and Symptom Management to Patient Requests for Physician-Assisted Suicide,
6 J. Pain Symptom Mgt. 289 (1991)    6
Lisson, E.L., Ethical Issues Related to Pain Control, 22 Nursing Clinics N. Am. 649 (1987)    5
National Institutes of Health, The Management of Chronic Pain, Program Announcement PA NUMBER:
PA-01-115 (July 2, 2001), online at http://grants1.nih.gov/grants/guide/pa-files/
PA-01-115.html [accessed 10/28/03]    7
Oken, R., Note: Curing Healthcare Providers' Failure To Administer Opioids In The Treatment Of Severe Pain, 23 Cardozo L. Rev. 1917 (2000)    4
Pennsylvania Medical Board, Habits of Highly Effective Pain Managers, Newsletter, 3 (Winter 2002), available at www.dos.state.pa.us/bpoa/LIB/bpoa/
20/10/mednews02.pdf [visited 10/30/03]    5
Portenoy, R., Opioid Therapy for Chronic Non-malignant Pain: current status. In: Fields HL, Liebeskind JC, Eds. Progress in pain research and management, vol. 1. Seattle: IASP Press, 1994    9
Porter, J., Jick, H., Addiction rare in patients treated with narcotics [letter].  N. Engl. J. Med., 1980: 302:123    9

Zucco, T., When It Comes to Hurting, Our State is Hurting, St. Petersburg Times, September 19, 2003.    8
BRIEF OF AMICUS CURIAE

The National Foundation for the Treatment Of Pain and The Florida Pain Initiative

In Support of Appellant

I. SUMMARY OF THE ARGUMENT
The Florida Constitution, statute and case law establish that the order appealed from be reversed and the warrants at be quashed, without recourse to a corrective process and substitute seizure.   Releasing these records after the initial incursions will gut FLA. STAT. ANN. § 395.3025(4)(d) which requires a subpoena, to issue only after notice and hearing to obtain patient hospital records and FLA. STAT. ANN. §456.057(5)(a)(3) applying the same protection for records maintained in doctors1 offices and other treatment contexts.
The court must subject the state1s intrusion to the strictest scrutiny. There is no reason here to allow a criminal investigation to trump fundamental privacy rights.  The precedents that allow such a reordering are all premised on the seizure of factual evidence in the context manslaughter or serious bodily harm.  Here what is sought is a patient1s statements to his doctor and the potential commission of a victimless crime in the context of seeking medical care. In this context great care must be taken. At stake is the ability of patients to safely obtain pain medication for chronic, persistent pain.  
Appellant is a subject of a state criminal investigation based on allegations that he is 3doctor shopped2 in violation of 46 Fla. Stat. § 893.13 (7)(a)(8).  Doctor shopping is a Class 3 felony committed by failing to tell a doctor that one has obtained pain medication (controlled substance) from another doctor within the past 30 days. Amici adopt Appellant1s statements of the facts for further details.
The state obtained three search warrants and seized the entirety of appellant1s medical records from three Florida physicians. The state made no attempt whatsoever to comply with the notice and hearing provisions of state law.  Even after Mr. Limbaugh protested the initial seizures and demanded a hearing, the state seized additional records without notice or hearing Mr. Limbaugh moved to suppress the warrants. By-passing the statutory procedure guaranteed that the least restrictive means test would be failed.
After hearing of the issue, the trial court reasoned that the failure could be easily cured by complying with the rules and permitted the state to retain the entire medical record.
II. THE INTERESTS OF THE AMICI
Pain is woefully undertreated in Florida and elsewhere.  The Amici are organizations that advocate for improvements in pain management and pain management access.  They are intimately aware of the costs of loss of physician-patient confidentiality and patient privacy that the warrants at issue here represent.    Much more is at stake than the furtherance of a routine drug investigation.
The National Foundation for the Treatment of Pain (3NTFP2)
NTFP is a not-for-profit 501(c)(3) corporation organized under the laws of New Mexico. NFTP1s purpose is to make legitimate, comprehensive, caring and state of the art pain treatment available to every American, using all modalities of care. It is also a resource for health care professionals and others concerned with legal issues regarding the legitimate treatment of pain.  NFTP1s members include Florida residents who suffer from untreated or undertreated chronic intractable pain.
One of NFTP1s activities is to bring together those who experience persistent chronic pain and to use their experience to better understand and educate others about its consequences.  NFTP1s web site, www.paincare.org, receives as many as 15,000 visits daily.  There is nothing speculative about what NTFP has to say here about the consequences of pain.

The Florida Pain Initiative (3Florida Pain2)
Florida Pain is a state-wide not-for-profit organization with offices in Tampa, Florida.  It is an association of health care professionals including physicians, nurses, pharmacists, social workers, nurse practitioners and physicians1 assistants.  Its mission is to improve the quality of life of Florida residents by using education, clinical practice and patient advocacy to improve pain care.  It prepares educational programs for patients, public sector, students, and health care professionals to improve knowledge regarding pain management; and it fosters communication and collaborates with legal and regulatory bodies to assure access to optimal pain management for all Floridians.  It brings an important local perspective to issues of untreated and undertreated pain.
III. ARGUMENT
A. Pain Is a Serious and Largely Unnecessary Public Health Problem in Florida.  Use of Appellant1s Medical Records Will Make a Bad Situation Worse.
1. Pain Creates a Devastating Situation for the Sufferers and Those Who Care For Them.
Chronic pain is a devastating condition. As Albert Schweitzer put it, 3[p]ain is a more terrible lord than death itself.2
Pain is dehumanizing. The severer the pain, the more it overshadows the patient1s intelligence. All she or he can think about is pain: there is no past, no pain-free memory, no pain-free future, only the pain-filled present.  Pain destroys autonomy: the patient is afraid to make the slightest movement. All choices are focused on either relieving the present pain or preventing greater future pain, and for this one will sell one1s soul.
Chronic pain is almost universally accompanied by anxiety and depression.  Suicide is not uncommon.   Chronic pain is also a damaging and even deadly 3destructive disease with physical, psychological, and behavioral consequences.2   Chronic pain compromises the immune system and slows healing. It causes cell damage and death. Untreated pain 3rewires2 the nervous system so that even when the original cause of pain is removed, pain continues.   This 3rewired2 pain can be harder to treat than the original cause.
B. Chronic Pain is Costly to Society.
Chronic pain affects as many as 50 million Americans to the extent that they cannot work productively and become fully or partially disabled.   It is one of the most frequent causes for Social Security disability and dramatically affects state, federal and private health care costs. It adds to state Medicaid costs. The total cost of untreated pain approximates $100 billion a year attributable to lost workdays, excessive or unnecessary hospitalizations, unnecessary surgical procedures, inappropriate medication and patient-incurred expenses from self-treatment.
C. Untreated Pain is Widespread in Florida.
Experts estimate that as much as 95% of all pain can be reduced to manageable levels. Yet, it isn1t. An American Pain Society survey in 1999 revealed that 54 million adults experience long-term moderate to severe pain annually.  The survey also found that only a quarter of those with chronic pain received adequate treatment.
Conditions in Florida are lower than the national averages. A recent survey conducted for Florida Pain found that Floridians ages 30-49 years were 32% more likely to experience some form of pain than those responding to a national survey.   For older Floridians, the problem is even worse. A comprehensive state-by-state study of pain in nursing homes found that 9.2% of Florida nursing home residents experienced excruciating long-term pain, compared with 3.9% nationally.   Florida also exceeded national levels in the number of nursing home residents in persistent pain and persistent severe pain.
D. Opioids Are Effective For Chronic Pain but Seriously Under Used.
The Amici have seen many individuals in Mr. Limbaugh1s position.  Though he has announced that he is 3an addict2, Amici are confident that he actually suffers from chronic intractable pain 3CIP2.   Opioid medications like those that Mr. Limbaugh is believed to have obtained through doctor-shopping are extremely effective against many kinds of pain, particularly CIP.   They are, among other uses, the last line of defense when back or neck surgery has failed. Like many other medicines, from insulin to aspirin, they have side effects and must be carefully managed and taken only as prescribed.  
   Two factors, fear of addiction and fear of sanction/prosecution substantially reduce physicians1 willingness to prescribe opioids and to some extent, the patient1s willness to accept opioid therapy.  These have been exacerbated by the hysteria surrounding the opioid OxyContin.  They set the context in which this dispute is framed.
1. Fear of Addiction
There is a belief, dramatically fostered in Florida by media ignorance, that anyone who takes opioid medications is at substantial risk of addiction. In fact, the rate of addiction those who are treated by a doctor with opioid medications is no more than that of addiction in the general population.  There is a solid body of clinical evidence that patients with a history of substance abuse or alcoholism may have a predisposition to poor control of their medications and to addiction.  Physical dependence and tolerance are different matters: anyone who takes opioids, whether for medication or to feed addiction, will become physically dependent on the medication and will encounter withdrawal if he or she stops taking it abruptly.  
Ability to function divides the addict from the physically dependent pain patient. The Florida Medical Board explains that addiction is characterized by 3compulsive use despite harm2.  Addicts become socially less functional as the drug takes over their lives. All thought revolves on where the next 3hit2 is coming from.    Addicts are less able to handle their jobs, family obligations and social participation than they were pre-addiction.
In stark contrast, patients who take opiods to relieve pain become more functional.  They are able to rejoin the lives of their families and community and often return to work.  They are less depressed, less anxious and often view the change as 3life-saving2. For this reason, the Florida Medical Board  instructs physicians that 3tolerance and physical dependence are normal consequences of sustained use of opioid analgesics and are not synonymous with addiction.2
This advice has not penetrated deeply even into the medical community.  The general public and the media equate physical dependence and addiction Even those pain patients who have not been well counseled by their doctors may believe that they are addicted.
The label 3addict2 is highly stigmatizing.  Our society is inordinately concerned with drug abuse, and rightly so.  However, when the stigma spills over to affect the availability of pain management medications to those who need them to function better, it becomes a serious wrong.
2. OxyContin Hysteria
OxyContin is a formulation of the opioid oxycodone to provide extended relief.  Pain experts almost universally recommend a combination of a long-acting opioid, such as OxyContin, and a short-acting opioid for breakthrough pain.  When properly prescribed and taken as prescribed, OxyContin is a safe and effective medication for moderate to severe pain.   T To accomplish the sustained release, OxyContin contains more opioid per pill than short acting opioids.  That is how it provides a therapeutic benefit over 10-12 hours.  It therefore has become a popular drug among addicts who crush the medication and inject it to get a potent and rapid high.  Media have hyped the dangers (without mentioning that they occur almost entirely when the drug is abused) and have caused a hideous stigma to be attached to those who take it legally or illegally.  Pain patient who take opioids are assumed to be addicts. The stigmatization of OxyContin is much stronger.  Pain patients have lost jobs simply on the strength of employer awareness that they take OxyContin.
3. Prescribing Physicians Fear Regulatory or Criminal Sanctions
In addition to addiction and physical dependence, the pain/addiction societies and the Florida Medical Board identify a third condition, 2pseudoaddiction.2   This condition defines persons who have untreated and undertreated pain and who set out to achieve better pain management through 3drug seeking behaviors2 including 3doctor shopping2 and purchasing on the illegal market in the same way that both real addicts and drug diverters do. The difference is that when their undertreated pain is appropriately treated, all ambiguous behavior ceases. Amici are confident that Mr. Limbaugh is a pseudoaddict.  His obvious functionality belies true addiction.
Pseudoaddictive behavior is a reaction to the harsh reality of the prescribing climate in Florida and elsewhere: doctors are afraid to prescribe opioids to therapeutic levels. In Florida, doctors have been arrested and jailed when patients lie to them about drug abuse or diversion and then sell or inject their medications and someone dies of a drug overdose.   The law-enforcement mind-set works to the great detriment of patients.  Doctors are not fools.  Rather than risk their professional licenses or personal freedom, doctors routinely refuse to prescribe opioids to patients that they know would benefit from them.  Those who do prescribe frequently self-impose a dose limitation that falls short of therapeutic levels for the individual.   These choices are ethically and clinically wrong but the chances are good that a doctor who puts his patient first may be putting himself in danger.  Legislative and Medical Board actions accepting and encouraging doctors to use opioids for chronic pain  are virtually worthless in a context of punitive and ill-informed law enforcement. Physicians can read the papers and they are not fools.
Many patients who are harmed by their doctor1s fears will try to endure.  Others go doctor-shopping to get a self-adjudicated therapeutic level.  This is bad for the patient since he or she is then deceiving the second (or third) doctor and committing a felony. He or she also foregoes fully informed medical management of any side-effects.  However, doctor shopping for pain relief is above all a victimless crime by a patient that is him/herself a victim of a climate of fear. Amici cannot condone this activity but can very well understand why it occurs.
The importance of these facts is that physicians and patients are groping to understand the environment in which they operate.  Physicians are meant to be healers, but fear their patients1 misdeeds.  Patients are meant to be treated, but are rationed out of physicians1 fears.  Law enforcement is dogging the heels of both.  The state needs to do everything it can to resolve this issue in the favor of its patients.  Doctors should be able to ask freely important questions about a patient1s background and patients should be free to talk without fear that they will be investigated for 3doctor-shopping2 and worse.  Doctors will ask less and patients will tell less if the warrants are allowed to stand.  In the context of medical management of pain, this can cause bad outcomes.

B. PERMITTING LAW ENFORCEMENT ACCESS TO THE MEDICAL RECORDS IN QUESTION IS AN INAPPROPRIATE AND UNPRECEDENTED USE OF THE 3LAW ENFORCEMENT2 EXCEPTION TO MEDICAL RECORDS PRIVACY.

This court will be well briefed by Appellant and other amici on the bedrock that Article 23 of the Florida Constitution creates for privacy in Florida.  This enumerated right exceeds It is well-established that the protection exceeds that offered by the federal Constitution.   The right cannot be invaded except to further another compelling state interest and then only if the least intrusive manner is used.
1.  In This Case, Law Enforcement Interests Do Not Outweigh Privacy Concerns.

a. Privacy is a fundamental right in Florida.
Medical records privacy goes back to the Hippocratic Oath.   It is integral to the American Medical Association1s ethical code.   It is also the subject of a specific statute that sets out precisely the means that the state must use if it wishes to subpoena medical records.  
The state does not try to claim that it followed these procedures.  In fact, even after Mr. Limbaugh protested the failure to use the statutory procedure on December 2, 2003, the state made a second seizure on December 5‹again disregarding the statutory procedure. The state also took the unusual step of making a public record out of Mr. Limbaugh1s pharmacy records and the identities of his doctors by filing the affidavit in support of the illegal search warrants.
b. Florida Statutes Encourage Doctors to Treat Pain.
The factors just discussed lead to a situation in which pain is rampant and doctors are unwilling to treat it using opioids.  Frustrated at the situation in which good medications were not being used, the Florida legislature passed the Intractable Pain Act, F.S.A. §458.326 (1994)(3IPA2).20 IPA assures physicians that if they act with intelligence and integrity they should feel safe treating chronic pain with opioids when appropriate.  Doctors still hung back.  In 2000, the legislature required doctors to treat pain or refer patients to pain experts. FLA. STAT. ANN. § 765.1103 (2000).  At the same time, nothing in the statutes, medical board guidelines or other source applicable in Florida denies doctors the ability to treat pain even in patients with a current or past history of substance abuse.
c. When the Crime is Victimless, Its Status as a Compelling State Interest Should be Reconsidered.

Although Florida1s courts have been willing to balance privacy against the state1s interest in investigating crime, they have never done so in a case in which the crime itself was victimless.  To the best of Amici1s knowledge, invasion of medical records privacy held by a physician or hospital has not occurred except in investigation of crimes involving the death of innocent third parties. See, eg. State v. Johnson, op. cit.(DUI manslaughter involving a passenger1s death); State v. Rutherford, 707 So. 2d 1129(4th DCA 1997) (DUI manslaughter involving passenger death); State v. Manney, 723 So.2d 928(5th DCA 1999)(DUI vehicular manslaughter, four deaths); Hunter v. State, 639 So. 2d 72 (5th DCA 1994) (DUI death of driver of other car); Cameron v. State, 804 So.2d 338(4th DCA 2001) (DUI-boating accident involving six deaths).
This is a dramatically different situation. We have a class three felony that has no suggestion of third party injury or intent to injure.   For example, there is no allegation that Mr. Limbaugh is being investigated for doctor-shopping in order to sell the pills for gain or to give them to anyone else. His only known purpose was to secure medication for serious chronic intractable pain.  For Amici, this is a critical distinction and should change the balancing equation.
In this case, the compelling state interest in law enforcement should be balanced against not only the invasion of a fundamental right to privacy but the state1s legislative and regulatory policy of improving pain care in Florida.
The validity of this approach appears in the way that the legislature has raised the standards for medical records privacy in substance abuse treatment centers. FLA. STAT. ANN. § 397.501(7)(a)(1993).  In order to increase participation in treating harmful drug abuse, the statute allows law enforcement into clinic records only after application to a court.  The application will not be granted  except in limited cases involving a crime on the premises involving a threat or attack on treatment personnel and in the case of child abuse.  Even in these cases, disclosure is limited to bare facts, not full records.  Otherwise, it would be a simple matter for law enforcement, acting on the reasonable supposition that most drug addiction clients had obtained their medications illegally‹by doctor shopping or by illegal purchase or even by robbery‹could obtain the records of any known client.
The state has decided to forego that luxury in the interests of more powerful concerns for the public health. § 397.305(1). The statute provides a meaningful standard for the case at bar: 3The court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the client, to the service provider-client relationship, and to the service provider itself.2 §397.501(7)(a)(5).  These same factors should apply applied when law enforcement seeks to invade medical records of pain patients in light of the public interest in promoting pain management.  Applying those standards here would result in a clear finding of injury to th