Allen v. Wright

644 S.E.2d 814, 282 Ga. 9, 2007 Fulton County D. Rep. 1457, 2007 Ga. LEXIS 343
CourtSupreme Court of Georgia
DecidedMay 14, 2007
DocketS06G2018
StatusPublished
Cited by46 cases

This text of 644 S.E.2d 814 (Allen v. Wright) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Wright, 644 S.E.2d 814, 282 Ga. 9, 2007 Fulton County D. Rep. 1457, 2007 Ga. LEXIS 343 (Ga. 2007).

Opinions

CARLEY, Justice.

Ernestine Wright filed a medical malpractice action against Dr. Thomas Allen and others (Appellants). In ostensible compliance with OCGA § 9-11-9.2, Ms. Wright executed an authorization to release her medical records, which she filed contemporaneously with her complaint. Appellants moved to dismiss on the ground that the authorization did not satisfy the requirements of OCGA § 9-11-9.2 in several particulars. Appellants’ objections included the failure of the document to authorize their attorneys to communicate with her [10]*10treating physicians outside the presence of and without prior notification to her lawyer, even though the statute does not expressly provide that the plaintiffs requisite authorization must grant such ex parte discovery rights to the defendant. The trial court denied the motion to dismiss, holding that OCGA § 9-11-9.2 was preempted by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The trial court certified its order for immediate review, and the Court of Appeals granted an interlocutory appeal. That Court affirmed the trial court’s ruling in a brief opinion which noted that the preemption issue had recently been decided adversely to Appellants’ contention in Northlake Medical Center v. Queen, 280 Ga. App. 510 (634 SE2d 486) (2006) and that “the reasoning set forth in Division 2 of that opinion [is] controlling here.” Allen v. Wright, 280 Ga. App. 554, 555 (1) (634 SE2d 518) (2006). See also Crisp Regional Hosp. v. Sanders, 281 Ga. App. 393 (636 SE2d 123) (2006).

Appellants applied for certiorari to review the decision of the Court of Appeals. Because the preemption question was an issue of first impression and certiorari had not been sought in the Northlake Medical Center case, we granted Appellants’ petition.

1. Subsection (a) of OCGA § 9-11-9.2 provides, in relevant part, that

[i]n any action for damages alleging medical malpractice..., contemporaneously with the filing of the complaint, the plaintiff shall be required to file a medical authorization form. Failure to provide this authorization shall subject the complaint to dismissal.

Subsection (b) of the statute specifies that

[t]he authorization shall provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records to facilitate the investigation, evaluation, and defense of the claims and allegations set forth in the complaint which pertain to the plaintiff or, where applicable, the plaintiffs decedent whose treatment is at issue in the complaint. This authorization includes the defendant’s attorney’s right to discuss the care and treatment of the plaintiff or, where applicable, the plaintiffs decedent with all of the plaintiffs or decedent’s treating physicians.

[11]*11Subsection (c) states that

[t]he authorization shall provide for the release of all protected health information except information that is considered privileged and shall authorize the release of such information by any physician or health care facility by which health care records of the plaintiff or the plaintiff s decedent would be maintained.
The intent of HIPAA is “to ensure the integrity and confidentiality of patients’ information and to protect against unauthorized uses or disclosures of the information.” [Cit.] The rules promulgating the standards set forth in HIPAA, which govern the disclosure of “protected health information” by health care providers, are collectively known as “the Privacy Rule.” [Cit.] HIPAA expressly preempts any provision of State law that is contrary to the provisions of HIPAA. [Cits.]

Northlake Medical Center v. Queen, supra at 511-512 (2). The provisions of OCGA § 9-11-9.2 (a) impose a requirement on the plaintiff who brings a medical malpractice action in this state to file a medical authorization form contemporaneously with the complaint. The General Assembly could have expressly provided that the requisite authorization comply with the provisions of HIPAA, but it did not. Thus, the issue becomes whether OCGA § 9-11-9.2, as enacted, is unenforceable because it is preempted by HIPAA. “Where a [S]tate statute conflicts with, or frustrates, federal law, the former must give way. [Cits.]” CSXTransp. v. Easterwood, 507 U. S. 658, 663 (I) (113 SC 1732, 123 LE2d 387) (1993).

As was recognized by the Court of Appeals, in order to comply with HIPAA, a patient’s authorization to disclose protected health information must contain certain elements, one of which is notice of the right to revoke the authorization. Northlake Medical Center v. Queen, supra at 512-513 (2). By its terms, OCGA § 9-11-9.2 does not require that the authorization form contain such a notification provision. Appellants urge that this is immaterial, since the plaintiff is always entitled to dismiss the complaint and thereby revoke the authorization which OCGA § 9-11-9.2 requires accompany it. However, the fallacy in this assertion is that revocation of the authorization is simply the indirect result of dismissal of the lawsuit. HIPAA requires that a patient be expressly informed of the right to revoke the authorization directly. There is a significant difference between the requirement that express notice be given to a medical patient of the right to revoke an authorization of access to protected medical [12]*12information, and simply recognizing that the exercise of his or her legal right of dismissal of the lawsuit can have an effect similar to a direct revocation of the authorization itself. HIPAA requires that patients be informed of their right to revoke an authorization form. The federal statute does not recognize that the right to dismiss a lawsuit in which the submission of an authorization is a prerequisite is the functional equivalent of informing the patient of his or her right to revoke the authorization itself.

Therefore, we conclude that OCGA § 9-11-9.2 does not sufficiently comply with the HIPAA requirement of notice of the right to revoke.

This Court may construe statutes to avoid absurd results .... [Cit.] However, under our system of separation of powers this Court does not have the authority to rewrite statutes. “(T)he doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature.

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Bluebook (online)
644 S.E.2d 814, 282 Ga. 9, 2007 Fulton County D. Rep. 1457, 2007 Ga. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-wright-ga-2007.