Georgia Supreme Court kills part of state's tort reform law

The ruling against releasing medical records is the latest to chip away at the state's liability protections.

By Amy Lynn Sorrel — Posted June 18, 2007

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Georgia doctors might find it harder to defend medical liability lawsuits after the high court there overturned a state law requiring plaintiffs to authorize disclosure of their medical records when they file their cases.

Passed as part of a 2005 tort reform package, the statute required plaintiffs to attach to their complaint a privacy waiver agreeing to immediately turn over relevant health information to the defense. Failing to include the authorization would subject the lawsuit to dismissal.

But in its 6-1 decision in Allen v. Wright, the Supreme Court of Georgia said the statute did not measure up to federal HIPAA privacy standards. Part of the problem, the court found, was that the law did not outline how to specifically and meaningfully identify health information relevant to a case and thus open to disclosure. Judges objected to the measure's failure to inform patients of their right to revoke the authorization for information they viewed as irrelevant.

Making dismissal of the lawsuit the only way a plaintiff could object to any disclosure did not comply with the federal privacy statute, the court said. The law also fell short, the majority found, because it didn't set a time frame for when access to the medical information would expire.

Because the measure offered less protection than the federal medical records privacy statute, the court rejected it. This leaves it up to state legislators to craft a new one.

Doctors say the ruling defies well-established state law putting plaintiffs on notice that they must automatically waive certain privacy rights when they put their health at issue in a lawsuit.

"It's an issue of fairness," said Donald Palmisano Jr., general counsel of the Medical Assn. of Georgia, which filed a friend-of-the-court brief supporting the tort reform measure. "Not allowing the defense to have this information puts them at a disadvantage in preparing for a case."

Doctors still can request the information but will have to go through the traditional discovery process, such as subpoenas and depositions, he explained. Physicians worry that without the early waiver requirement, plaintiffs and their treating doctors can refuse to share relevant information, forcing defendants to go through the court to access it.

Lawyers: Ruling stops overreaching

Trial lawyers, on the other hand, say the authorization requirement went too far because it gave patients no choice but to release broad personal health information, even if it was not related to the case, or face dismissal of the claim if they opposed disclosures.

"The statute forced the plaintiff to release all this information with no opportunity to object to it until it was already out there," said Zachary H. Thomas, a plaintiff attorney involved in the case.

Though long-standing Georgia law requires patients to share relevant medical information when they file a lawsuit, the recent tort reform measure called for the release of all protected health information unless it is privileged, Thomas said.

"Who defines [what is privileged] is up in the air: Is it up to the plaintiff? The doctor? The defense?" he asked.

Rarely are plaintiffs uncooperative about releasing medical information pertinent to a medical liability lawsuit, Thomas added.

The Georgia Trial Lawyers Assn., which also filed a friend-of-the-court brief in the case, praised the high court ruling in a statement. GTLA President Joseph W. Watkins said the overturned law was an attempt to undermine plaintiffs' privacy rights.

The court opinion's lone dissenter, Justice Carol W. Hunstein, argued that, though flawed, the statute did not necessarily violate HIPAA because nothing in it took away a plaintiff's right to object to any disclosures.

Rather than strike down the law altogether, the court could have allowed an authorization form to be drafted that included the elements required under both state and federal laws, Hunstein suggested.

The May decision is the latest to chip away at recent medical liability reforms passed in Georgia. The high court in February 2006 overturned the venue portion of the law that would have allowed defendants to transfer the case to the county where the alleged negligence occurred.

MAG's Palmisano said the recent ruling is not likely to affect other reforms. The medical society is deciding whether to pursue legislation to amend the authorization statute.

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Case at a glance

Allen v. Wright

Venue: Supreme Court of Georgia
At issue: Whether a state law requiring plaintiffs to release their private medical information at the time they file a lawsuit violates HIPAA. The court said yes.
Potential impact: Doctors say that without the authorization, they are at a disadvantage in defending lawsuits because plaintiffs have access to all relevant information early in a case. Trial lawyers say the requirement unfairly hurt plaintiffs because they had no way of objecting to the release of certain medical information without subjecting their lawsuit to dismissal.

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