[ Wednesday, November 05, 2008 ]


Georgia Courts Rule on Preemption: From BNA:

"Defense attorneys wishing to engage in ex parte communications with a plaintiff's treating physicians must comply with the privacy rule under the Health Insurance Portability and Accountability Act, the Georgia Supreme Court ruled Nov. 3 (Moreland v. Austin, Ga., No. S08G0498, 11/3/08). The state high court said HIPAA preempts Georgia law that would otherwise allow defense counsel to interview a particular plaintiff's treating physicians outside the presence of the plaintiff's attorney, because HIPAA applies both to written records and to oral communications containing protected health information (PHI)."

Basically, defense counsel can't talk to the plaintiff's doctors about the plaintiff's medical condition without plaintiff's lawyers present, unless the plaintiff gives a HIPAA-compliant authorization. Georgia law says that in a malpractice case, the plaintiff puts his/her medical condition in issue, so medical records must be produced. However, the Georgia Supreme Court has said that the Georgia law is now preempted, since HIPAA gives greater protection.

I'd have to actually read the Georgia law, but I might disagree. HIPAA allows uses and disclosures required by state law. If Georgia's state law allows that disclosure and requires the doctor to disclose the information once the plaintiff raises medical issue into the litigation, then there's no reason to preempt the state law, since there's not a conflict (HIPAA allows the disclosure if state law requires it).

Case here (subscription may be required).

Jeff [12:11 PM]

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