Allen v. Wright

• Decision Date: 14 May 2007
• Docket Number: No. S06G2018.,S06G2018.
• Citation: 644 S.E.2d 814,282 Ga. 9
• Parties: ALLEN et al. v. WRIGHT.
• Court: Georgia Supreme Court

282 Ga. 9

644 S.E.2d 814

ALLEN et al. v. WRIGHT.

No. S06G2018.

Supreme Court of Georgia.

May 14, 2007.

David Norton Nelson, Norman Carter Pearson, III, Chambless, Higdon, Richardson, Katz & Griggs, Macon; John C. Daniels, Martin, Snow, Grant & Napier, Macon, for Appellant.

Norman S. Fletcher, Brinson Askew Berry Seigler Richardson & Davis, Rome; Allen S. Willingham, Robert P. Monyak, Love Willingham Peters Gilleland & Monyak, LLP, Atlanta, Amici Appellant.

William Harold Pinson, Jr., Zachary Hamilton Thomas, Savage Turner Pinson & Karsman, Savannah; Lawrence J. Myers, Smith Moore, LLP, Atlanta, for Appellee.

Matthew G. Nasrallah, Robertson Bodoh & Nasrallah, LLP, Marietta; Charles R. Adams, III, Adams & Adams, LLP, Forte Valley, Amici Appellant.

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 treating physicians outside the presence of and without prior notification to her lawyer, even though the statute does not expressly provide that the plaintiff's 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 S.E.2d 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 S.E.2d 518 (2006). See also Crisp Regional Hosp. v. Sanders, 281 Ga.App. 393, 636 S.E.2d 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 plaintiff's 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 plaintiff's decedent with all of the plaintiff's or decedent's treating physicians.

Subsection (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), 634 S.E.2d 486. 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 State statute conflicts with, or frustrates, federal law, the former must give way. [Cits.]" CSX Transp. v. Easterwood, 507 U.S. 658, 663(I), 113 S.Ct. 1732, 123 L.Ed.2d 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), 634 S.E.2d 486. 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 information, 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. We can not add a line to the law." [Cit.]

State v. Fielden, 280 Ga. 444, 448, 629 S.E.2d 252 (2006).

HIPAA and the related provisions established in the Code of Federal Regulations expressly supercede any contrary provisions of State law except as provided in 42 U.S.C. § 1320d-7 (a)(2). Under the relevant exception, HIPAA and its standards do not preempt state law if the state law relates to the privacy of individually identifiable health information and is "more stringent" than HIPAA's requirements. [Cits.]

Law v. Zuckerman, 307 F.Supp.2d 705, 708-709(A) (D.Md.2004). "`[M]ore stringent' . . . mean[s] laws that afford patients more control over their medical records." (Emphasis in original.) Law v. Zuckerman, supra at 709(A). Because OCGA § 9-11-9.2 fails to impose any express requirement of notification of the right to revoke, it is possible to comply with its provisions while failing to satisfy the more stringent requirements of HIPAA. Therefore, the state statute has been preempted by the federal law. "The Supremacy Clause of the United States Constitution dictates that federal law preempts inconsistent state law. [Cit.]" Poloney v. Tambrands, 260 Ga. 850(1), 412 S.E.2d 526 (1991).

2. In addition to the statute's failure to provide for notice of the right of revocation, the Court of Appeals in Northlake Medical Center v. Queen, supra at 513(2), 634 S.E.2d 486, found "that the authorization set forth in OCGA § 9-11-9.2 is contrary to HIPAA because it does not satisfy the requirements for a valid HIPAA authorization [in several other respects]. [Cit.]" We agree with the holding in that opinion that the failure to require a specific and meaningful identification of the information to be disclosed and the failure to provide for an expiration date or a sufficient expiration event are additional bases which support the conclusion "that OCGA § 9-11-9.2 is contrary to HIPAA and none of the exceptions . . . applies, [so] it is preempted by HIPPA. [Cit.]" Northlake Medical Center v. Queen, supra at 514(2), 634 S.E.2d 486.

3. The dissent cites Buice v. Dixon, 223 Ga. 645, 157 S.E.2d 481 (1967) in support of the position that OCGA § 9-11-9.2, as presently written, can be construed in harmony with HIPAA. However, OCGA § 9-11-9.2 does not simply provide that the plaintiff in a medical malpractice action must file a medical authorization form, and then leave for necessary implication the incorporation into that form of all HIPAA requirements. Compare Buice v. Dixon, supra (requirement for notice and hearing implied where statute otherwise failed to contain express provision therefor). Instead, in both subsections (b) and (c), the statute sets forth the specified statements and information that the authorization "shall provide,"...