Judge Offers Steroid Buyers a Shot at Privacy: Customers of Florida Pharmacy Can Oppose Use of Records in Court

By Brendan J. Lyons, Albany Times Union, N.Y.

Apr. 6–Tens of thousands of people across the United States who purchased drugs from an Orlando pharmacy at the center of an Albany steroids case must be notified that their prescription records were seized by police, a Florida judge ruled this week.

Those drug buyers, many of whom bought steroids through companies that have Web sites, will then have 30 days to object to their records being used in court, the judge said. The judge also ordered police to stop sifting through the documents until medical privacy issues have been resolved.

The sealing order by Circuit Judge John Marshall Kest of Osceola County, Fla., will indefinitely stall the sprawling steroids investigation. It could also allow professional athletes and others suspected of illicitly buying drugs a chance to keep their names from becoming public in court.

Customers of Signature Compounding Pharmacy — including, authorities said, a number of professional sports figures — had their prescription records seized on Feb. 27.

An Orlando-based police task force is using the seized records to build a criminal case in their state. Meanwhile, criminal charges already are pending in Albany County, where two defendants, including a doctor, have pleaded guilty in the case. A grand jury here handed up indictments against more than a dozen doctors, pharmacists and the operators of several Internet “wellness centers” whose companies allegedly funneled business to Signature Pharmacy.

Amy Tingley, an Orlando attorney for Signature, told a judge during an emergency hearing in Kissimmee, Fla., last week that police seized drugs and documents unrelated to their investigation.

Tingley referred to Signature’s clients as “patients,” while prosecutors have characterized them as “customers.”

Tingley argued in court that Orlando police and investigators in Albany County should not be given access to the seized records until the patients have had a right to invoke their rights to medical privacy. She said the seized items included all patient records, including, for instance, the records of dialysis patients.

In the wake of the raids, the Times Union and Sports Illustrated magazine disclosed the names of several professional athletes who were identified by law enforcement sources as alleged customers of either Signature Pharmacy or Applied Pharmacy Services, in Mobile, Ala., which is also under investigation.

Albany County District Attorney David Soares subsequently met with officials from Major League Baseball and the National Football League, who came to Albany and asked prosecutors to share allegations of cheating players with their respective leagues. The leagues have policies that prohibit players from using steroids.

Soares said he had planned to turn over the names of athletes to investigators from those leagues, but this week’s ruling could put that initiative on hold.

“It’s a terrible shame that this has happened like this and that the media has so much interest in what are the patients’ names,” Tingley said, according to a recording of the court hearing reviewed by the Times Union. “But at some point Signature had to step up and say these patients have rights, they need to be notified so they can assert their rights.”

Florida prosecutors argued against the sealing order handed down Tuesday. They said more than half of Signature’s customers were people who purchased drugs “for non-legitimate purposes.”

“Sometimes … innocent third parties are really not that innocent, and that is exactly the case here before the court in the case of Signature,” said Anne Wedge-McMillan, a prosecutor with Florida’s Office of Statewide Prosecution, during arguments in the case. “The patients in this case, or customers as we’ve termed them … a majority of them are body builders who are using anabolic steroids, human growth hormone, estrogens and other alleged drugs for the purpose of body and performance enhancement.”

McMillan told the court that records from approximately 300,000 prescriptions were seized from Signature pharmacy.

She also challenged whether Signature’s attorneys were seeking the sealing order in the interest of protecting their patients’ privacy, noting that investigators had pulled complete patient records from the pharmacy’s trash bins, including just two nights before last week’s hearing.

Indeed, court records on file in New York and Florida show information gleaned from Signature’s trash was used to build evidence in the Albany case and to obtain wiretaps last year on the pharmacy’s telephones.

Syndicated radio talk show host Rush Limbaugh tried unsuccessfully to keep police in Florida from viewing his medical records after they were subpoenaed amid allegations he “doctor shopped” in order to fuel an addiction to prescription painkillers. A Florida appeals court ruled in that case that people who are the targets of a criminal investigation cannot invoke patient privacy rules in order to avoid prosecution.

In the steroids investigation, though, authorities have said people who purchased drugs from Signature are not being targeted. Instead, prosecutors said they are focusing on pharmacists, doctors and business owners who allegedly reaped millions of dollars through the issuance of phony prescriptions.

None of the records taken from Signature two months ago have been turned over to authorities here in Albany. They are, however, currently sifting through records that were seized from Palm Beach Rejuvenation, based in Jupiter, Fla. That wellness center’s owners, as well as its consulting physician, were indicted in Albany on felony charges that include criminal diversion of prescription medicines and criminal sale of a controlled substance.

New York Health Department investigators said Palm Beach Rejuvenation and other wellness clinics steered customers to Signature pharmacy, which sold about $10 million in prescriptions last year in New York state.

Adria Harper, director of the First Amendment Foundation, a nonprofit agency that promotes open government in Florida, said patient-privacy rules may not prohibit the eventual disclosure of records in the case.

“There are some instances where a judge can close certain records if he meets some narrow exceptions, but it’s important to note our right of oversight,” Harper said. “We do have a constitutional right to privacy, but the courts in Florida have said our constitutional right to access trumps privacy.”

Brian Devane, an Albany attorney retained by the owners of Signature pharmacy in their criminal case here, said the Florida ruling may not derail the prosecution in New York.

“It definitely upended that investigation (in Florida) for probably a significant period of time, no question,” he said.

Albany County Assistant District Attorney Christopher Baynes, the lead prosecutor, said the ruling by the Florida judge will not impede the case here.

“Our current indictment is built on evidence gathered independently from the Signature search warrants and we will continue to act in cooperation with Florida law enforcement,” Baynes said.

A spokeswoman for Florida’s Office of Statewide Prosecution said they would “actively prosecute the case” and declined further comment. J. Lyons can be reached at 454-5547 or by e-mail at blyons@timesunion.com.

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Copyright (c) 2007, Albany Times Union, N.Y.

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