Georgia liability plaintiffs don't have to waive privacy
■ The court ruling is the second against provisions in the state's recent tort reform.
By Amy Lynn Sorrel — Posted Aug. 14, 2006
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A Georgia appeals court in July struck down a portion of a medical liability tort reform package that would have required plaintiffs alleging negligence to authorize disclosure of their medical records to defendants. Under the statute, a case would have been subject to dismissal if the plaintiff didn't file a privacy waiver.
In a 6-1 decision, judges ruled that HIPAA preempts the law because the federal law's standards ensure that private health information is protected from unauthorized release.
Judge Gary Blaylock Andrews dissented, however, arguing that the statute does not violate HIPAA because the Georgia law gives plaintiffs adequate notice that they must waive certain privacy rights related to their alleged injury if they are going to file a complaint.
"It's an issue of fairness," said Donald J. Palmisano Jr., general counsel of the Medical Assn. of Georgia, which filed an amicus brief in the case supporting the state's tort reform measure. "This authorization is just a confirmation of what the plaintiff already knows, so why can't the defense have the same opportunity in preparing a case and the same rights to explore that plaintiff's medical history?"
The July ruling is the latest to chip away at reforms passed last year. In February, the state Supreme Court overturned the venue portion of the law that would have allowed defendants to transfer medical liability lawsuits to the county where the alleged negligence occurred.
Palmisano added that the most recent decision is unlikely to affect other reforms aimed at reducing frivolous lawsuits. At press time, there were no plans to appeal the ruling.
The Georgia statute includes a $350,000 cap on noneconomic damages, which Palmisano said he expects to be challenged. However, he said, "We believe the cap is constitutional."