LawLine Alert

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.

The Supreme Court of Georgia, however, held that this "analysis misses the mark," as it focuses on the discoverability of PHI instead of on the method used to discover it:  "[S]ervice of a request for production of documents is insufficient because, although it gave plaintiff notice and an opportunity to object to the production of written documents, it did not give plaintiff an opportunity to object to the ex parte oral contact and the discovery of the physicians' recollections and mental impressions."  Moreland v. Austin, 2008 WL 4762052, at *2 -3 (Ga. Sup. Ct., Nov. 3, 2008).

Notwithstanding that a plaintiff waives his right to privacy for medical records relating to a medical condition he places in issue, the Supreme Court concluded 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."  Id. at *2-3.  The Supreme Court clarified that defense counsel may continue to have ex parte conversations with a plaintiff's healthcare providers about "benign" matters that do not relate to PHI, such as scheduling testimony.  Id. at *3.  If, however, defense counsel wants to discuss PHI with a plaintiff's healthcare provider, he "must first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact, all in compliance with the requirements of HIPAA as set forth in 45 CFR § 164.512(e)."  Id.

Because HIPAA does not authorize a remedy or penalty for violating its edicts in the context of a civil lawsuit, the Supreme Court noted that it will be left up to trial courts, in the exercise of their broad discretion under O.C.G.A. § 9-11-37, to fashion an appropriate remedy for HIPAA violations.  Id. at *4.  Those remedies, of course, range in severity from a slap on the wrist to striking a defendant's answer.

The Americans with Disabilities Act (“ADA”) is about to undergo a major change. Last week, Congress passed the ADA Amendments Act of 2008 (“ADAAA”), which will overturn two prior Supreme Court cases and dramatically increase the scope of employees covered by the ADA. President Bush is expected to sign the bill into law this week, and the new legislation will take effect on January 1, 2009. For access to the text of the ADAA, click here.

Generally, to be entitled to protection under the ADA, an individual must show that he has a “physical or mental impairment that substantially limits a major life activity.” In two prior cases, the Supreme Court narrowed the scope of this definition. The ADAA rejects these cases, however, and states that the term “disability” is to be “construed broadly” to cover more physical and mental impairments.

In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the Court held that, if a person takes measures to correct or mitigate a physical or mental impairment, the effects of those measures must be considered when determining whether that person is “substantially limited” in a major life activity. Over the past decade, this has limited the number of viable claims under the ADA because, for instance, whether an individual with seizures was disabled depended on his condition while taking medication to control his seizures. The ADAAA overturns this ruling, however, by stating that future decisions of whether an individual has a disability must be made without regard to the effects of corrective devices or medications. The only exception is that the impact of ordinary eye glasses and contacts still may be considered with respect to one’s vision.

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court also narrowed the scope of the ADA by holding that, to be substantially limited in performing manual tasks, an individual must have an impairment that “prevents or severely restricts” him from doing activities of “central importance to most people’s daily lives.” The Court also held that the restrictions must be permanent or long-term. Under the ADAAA, this is no longer the case. The statute now says the term “substantially limits” must be construed broadly, and that an individual may disabled even if the effects of his impairment are “episodic, in remission, or latent.”

Other ramifications of the ADAAA include additional examples of major life activities (related to communication, working, and concentration) and the inclusion of bodily functions, such as digestive and reproductive functions, to the list of “major life activities.” The ADAAA also authorizes the EEOC to issue new regulations further explaining the scope of these changes. Although the regulations are not expected until late 2009, it is clear that more physical and mental impairments will be covered by the ADA, meaning that employers can expect increased litigation and greater scrutiny of their obligations to accommodate employees in the workplace.

Under the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”), which amended the Fair Credit Reporting Act and went into full effect in December 2006, retailers are permitted to show only the last five digits of the credit or debit card number on a printed receipt and may not show any portion of the card’s expiration date. 15 U.S.C. § 1681c(g). Recently, plaintiff’s attorneys have brought a wave of devastating litigation against retailers who provide electronic credit card and debit card receipts to consumers without properly truncating the card number or expiration date on the printed receipt in violation of FACTA.

Retailers who fail to comply with FACTA risk a class action lawsuit and potential damages that could cripple almost any business. In this regard, negligent failure to comply with the statute may result in liability for a customer’s actual damages and attorney fees. 15 U.S.C § 1681o. Retailers risk much harsher penalties, however, for willful failure to comply with the statute. Such conduct may result in liability for actual damages, punitive damages, attorney’s fees, and statutory fines of up to $1,000 per violation. 15 U.S.C. § 1681n.

Although some federal courts recently have ruled that FACTA’s truncation requirements are unconstitutional, until the law is settled in this area, retailers should become familiar with these requirements and ensure that they do not provide full credit or debit card numbers or expiration dates on receipts to customers.