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FMG Law Blog Line

Archive for November, 2008

Supreme Court of Georgia Reverses Court of Appeals, Finding HIPAA Precludes Defense Counsel’s Ex Parte Conversations with Plaintiff’s Doctors

Posted on: November 3rd, 2008

In a previous LawLine article, we reported on the Georgia Court of Appeals’ decision in Austin v. Moreland, 288 Ga. App. 270, 653 S.E.2d 347 (2007). Yesterday, the Supreme Court of Georgia unanimously reversed that decision.

Austin involved a medical malpractice claim where defense counsel had ex parte discussions with prior treating physicians of the plaintiff’s deceased husband.  The Court of Appeals held that those discussions did not violate HIPAA because the plaintiff had produced her deceased husband’s medical records containing protected health information (PHI), and defense counsel’s discussions did not go beyond the content of those records.  Id. at 275, 653 S.E.2d at 351.  The Court of Appeals reasoned that O.C.G.A. § 9-11-34(c)(2), governing requests for production to non-party healthcare providers, afforded greater protection than HIPAA by requiring notice and opportunity for a plaintiff to object to a defendants’ written discovery requests.  Id. at 274-75, 653 S.E.2d at 351. (more…)