[ Wednesday, May 16, 2007 ]


Georgia Preemption Case: The Georgia Supreme Court has ruled that the state law relating to the authorization a med mal plaintiff must give is preempted by HIPAA. This is a somewhat goofy, and not particularly relevant or important, decision. Basically, after HIPAA's passage, the Georgia legislature added a requirement that any medical malpractice plaintiff must file with the court, at the time of filing the lawsuit, an authorization allowing the defendant and his/her lawyers to access the plaintiff's relevant medical records. The state law contains some particulars regarding the requriements of the authorization, but they aren't exactly the same as HIPAA's requirements for a valid authorization, so the state Supreme Court has thrown out the state law.

Wrongly, I believe. The HIPAA preemption is not absolute, like the ERISA preemption, so the state is not prohibited from stepping into the waters of medical record privacy. Rather, if HIPAA is more protective of privacy than the state law, HIPAA applies. It is certainly possible that the state law and HIPAA could be complied with by a single authorization, and you could argue that the state law and HIPAA each have something to add in the particular circumstances of a Georgia resident seeking to recover from a physician or hospital for alleged professional liability.


Jeff [3:31 PM]

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