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GEORGIA SUPREME COURT RESTRICTS DEFENSE COUNSEL’S ACCESS TO PLAINTIFF’S TREATING PHYSICIANS

Posted by Susan J. Levy

In a blow to the defense bar, the Georgia Supreme Court recently held, in a unanimous Opinion reversing the Georgia Court of Appeals, that the Health Insurance Portability and Accountability Act (“HIPAA”), prohibits defense counsel from interviewing Plaintiff’s treating physicians without specific notice. Moreland v. Austin, 2008 Ga. LEXIS 864 (November 3, 2008).

In a medical malpractice action brought by Plaintiff Amanda Moreland for the wrongful death of her husband, Plaintiff Moreland produced records from physicians who had treated her husband before the Defendant physician treated him. Defense counsel then contacted those physicians, without notice to Plaintiff, and asked them to assess Mr. Moreland’s cardiovascular health and prognosis. Plaintiff objected to any ex parte communications between defense counsel and the decedent’s former physicians.

The issue confronted by the Georgia Supreme Court was whether defense counsel could engage in ex parte communications with the treating physicians after their records had already been produced to Defendant during discovery. Georgia law would clearly allow such conversations since once a Plaintiff places his health at issue in a civil or criminal proceeding, Plaintiff waives his right to privacy with regard to his medical condition and records. O.C.G.A. § 24-9-40(a).

Under federal law, which includes HIPAA, such communications with a Plaintiff’s physician are prohibited. 42 U.S.C. § 1320d et seq. In Austin, the Georgia Supreme Court held that federal law trumps Georgia law and that HIPAA, therefore, governs. The Court found that “HIPAA preempts Georgia law with regard to ex parte communications between defense counsel and Plaintiff’s prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians.” Austin at HN 8.

Consequently, the Court held, defense counsel cannot interview Plaintiff’s treating physicians without a court order or the notice and express consent of the patient. 45 CFR § 164.512(e). Moreover, in order to comply with HIPAA, the patient’s consent must specifically authorize ex parte oral communications, not just the general release of the patient’s records.

The Supreme Court’s ruling effectively slams the door on any attempts by Defendant’s counsel to solicit the opinions of a Plaintiff’s treating physicians and the impact of this decision will be felt by lawyers defending a broad range of personal injury and wrongful death cases.