Archive for December, 2008

Will Limiting Physician Contact Drive Up Costs of Medical Malpractice Defense?

A recent decision by the Supreme Court of Georgia will likely increase the already high costs of medical malpractice litigation, as the Court unanimously held that defense attorneys are no longer allowed to informally communicate with a patient’s prior treating physicians regarding that patient’s health information. In Moreland v. Austin, __ S.E.2d __, Case No. S08G0498, 2008 WL 4762052 (Ga. Nov. 3, 2008), Plaintiff objected to defense counsel’s informal “ex parte” communications with a deceased patient’s doctors during which defendant’s counsel asked the doctors to assess the Plaintiff’s cardiovascular status and prognosis. The Court found this communication to be improper.

At the heart of the matter was a patient’s ability to control his/her own medical records when it comes to informal contacts between his/her doctors and an outside party, in this case a lawyer. Georgia law provides more relaxed controls for patients, as they are deemed to waive their right of privacy regarding relevant medical information when they put that medical condition at issue in a case. O.C.G.A § 24-9-40(a). Under HIPAA, however, a medical provider may not disseminate a patient’s medical information without first obtaining a court order or the patient’s specific consent.

Because the regulation of this information distribution is more narrow at the federal level than at the state level, the Court held that HIPAA preempts Georgia law.Moreland at *3. The Court specifically noted that this preemption is focused on the methods used to discover evidence rather than the discoverability of the evidence in general. Id.

What this means for medical malpractice litigation is that defense attorneys will no longer be able to speak to a plaintiff’s prior treating physicians without complying with HIPAA regulations. If such ex parte oral communications are to be allowed, the patient must have specifically consented to them prior to the communication. Attorneys will be limited in their discovery tools for gaining information as well, as the Court explains that even “service 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 the plaintiff an opportunity to object to the ex parte oral contact and the discovery of physician’s recollections and mental impressions.” Id. As critics of the decision have noted, this limitation of efficient discovery opportunities will likely raise the costs of defending medical malpractice suits.

The Court noted that this decision does not limit all ex parte communications between an attorney and the physicians, only those that deal with a patient’s health information. Conversations regarding benign topics such as the best method for serving a subpoena or the most convenient dates for trial testimony are still allowed.

Georgia law had facilitated and streamlined the litigation process. However, with this decision, the Supreme Court of Georgia swings the balance towards an emphasis on the protection of a patient’s private health information.

As the losing defendant’s lawyer in Moreland may file a motion for reconsideration in the Supreme Court, and is not ruling out a petition to the United States Supreme Court on the issue, we will continue to follow this case and provide updates on any new developments concerning this issue.

For more information, please contact T.K. Haff at (404) 633-9230.

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