King v. State

• Decision Date: 02 October 2000
• Docket Number: No. S99A1490.,S99A1490.
• Citation: 272 Ga. 788,535 S.E.2d 492
• Parties: KING v. The STATE.
• Court: Georgia Supreme Court

535 S.E.2d 492

272 Ga. 788

KING v. The STATE.

No. S99A1490.

Supreme Court of Georgia.

October 2, 2000.

William D. Healan III, Winder, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

Richard A. Malone, District Attorney, Kermit N. McManus, District Attorney, Leslie C. Abernathy, Solicitor, Charles C. Olson, Smyrna, Alvin G. Hollingshed, Paul M. Kurtz, Athens, Robert A. Schapiro, Atlanta, Alston & Bird, Jack S. Schroder, Donna P. Bergeson, Angela T. Burnett, Atlanta, Sean A. Black, Toccoa, Healy & Svoren, Nina M. Svoren, Toccoa, Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, Atlanta, Bondurant, Mixson & Elmore, Michael B. Terry, Atlanta, David A. Cook, Avondale, Carol M. Todd, LaGrange, Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, Atlanta, King & Spalding, Richard L. Shackelford, Karen L. Duke, Atlanta, Kenneth B. Banks, Macon, Hunter, Maclean, Exley & Dunn, Atlanta, T. Mills Fleming, Savannah, Walker, Hulbert Gray & Byrd, Michael G. Gray, Perry, Shaw, Maddox, Graham, Monk & Boling, Chesley W. Monk, Rome, Duncan & Mangiafico, George E. Duncan, Jr., Atlanta, Bovis, Kyle & Burch, James E. Singer, Atlanta, Chambless, Hig & Carson, Macon, David N. Nelson, Metter, Reynolds & McArthur, Charles M. Cork III, Macon, Mills, Moraitakis, Atlanta, Kushel & Pearson, Albert M. Pearson, Atlanta, for amici curiae.

CARLEY, Justice.

Rebecca King was involved in a single-car collision. Emergency personnel found her in a semiconscious condition and transported her to the hospital before any investigating officer arrived on the scene. Because of the seriousness of her injuries, Ms. King was treated in accordance with the hospital's trauma protocol, which included subjecting her to blood-alcohol testing. This was for the purpose of medical diagnosis and treatment only. Ms. King neither consented to the test nor was she under arrest at the time it was administered. The test results indicated a blood-alcohol concentration of. 15. Approximately one hour later, the investigating officer arrived at the hospital and, pursuant to OCGA § 40-6-392, requested a State-administered test to determine Ms. King's blood-alcohol content. Based upon the results of this test, she was charged with several counts of driving under the influence, including a less safe driver violation. OCGA § 40-6-391(a)(1).

The trial court granted Ms. King's pre-trial motion to suppress the results of the State-administered blood test, because of the failure to prove the identity and qualifications of the individual who had drawn the blood. See Peek v. State, 272 Ga. 169, 527 S.E.2d 552 (2000). The prosecution then obtained the issuance of a subpoena to the hospital, seeking the production of Ms. King's medical records for the purpose of gathering evidence to use against her in the criminal proceeding. The hospital turned the records over to the State, without the knowledge or consent of Ms. King or her counsel. Upon learning of this development, Ms. King filed a motion to quash the subpoena and a motion in limine to prevent the use of her own personal medical records at the trial. In her motions, she raised constitutional challenges to the State's use of a subpoena to obtain her records, including an assertion of a violation of her right to privacy under Article I, Section I, Paragraph I of the Georgia Constitution of 1983. The trial court denied the motions, and the blood-alcohol results and the testimony of the supervisor of the hospital's hematology laboratory were admitted at trial over Ms. King's objections. The jury found her guilty of driving under the influence of alcohol to the extent that it was less safe for her to drive. Ms. King appeals from the judgment of conviction and sentence entered on that guilty verdict.

1. In Pavesich v. New England Life Ins. Co., 122 Ga. 190, 197, 50 S.E. 68 (1905), "this Court expressly recognized that Georgia citizens have a `liberty of privacy' guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law. [Cit.]" Powell v. State, 270 Ga. 327, 329(3), 510 S.E.2d 18 (1998). This right of privacy guaranteed by the Georgia Constitution is far more extensive than that protected by the Constitution of the United States. Powell v. State, supra at 330(3), 510 S.E.2d 18. In this state, privacy is considered a fundamental constitutional right and is "recognized as having a value so essential to individual liberty in our society that [its] infringement merits careful scrutiny by the courts." Ambles v. State, 259 Ga. 406, 408(2)(b), 383 S.E.2d 555 (1989). It is against this background that we must consider Ms. King's objection to the State's use of the subpoena to gain possession of her medical records.

While it is true that Georgia does not recognize a common-law or statutory physician-patient privilege, we deal here with the constitutional right of privacy. The initial inquiry is, therefore, whether Ms. King's medical records are within the ambit of protection provided by that more fundamental right. There is no specific authority on this issue. As a general proposition, however, the right of privacy

has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature. A right of privacy in matters purely private is therefore derived from natural law.

Pavesich v. New England Life Ins. Co., supra at 194, 50 S.E. 68. Applying this definition, a patient's medical information, as reflected in the records maintained by his or her medical providers, is certainly a matter which a reasonable person would consider to be private. "We believe that medical records are entitled to more privacy than bank records and phone records." Thurman v. State, 861 S.W.2d 96, 98 (Tex.App.1993). Compare United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (bank records). Even if the medical provider is the technical "owner" of the actual records, the patient nevertheless has a reasonable expectation of privacy in the information contained therein, since that data reflects the physical state of his or her body. Unless "demanded by the law of the land[,] ... the body of a person can not be put on exhibition at any time or at any place without his consent." Pavesich v. New England Life Ins. Co., supra at 196, 50 S.E. 68. Medical records are within the right of privacy afforded by the Federal Constitution. United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577(IV) (3d Cir.1980). Because Georgia recognizes an even broader concept of privacy, the personal medical records of this state's citizens clearly are protected by that right as guaranteed by our constitution.

Since Ms. King's medical records are protected by the constitutional right of privacy, they cannot be disclosed without her consent unless their prohibition is required by the law of Georgia. In that regard, the prosecution can justify its invasion of Ms. King's privacy only by showing that it acted pursuant to a statute which effectuates a compelling state interest and which is narrowly tailored to promote only that interest. Powell v. State, supra at 333(3), 510 S.E.2d 18. The State cites OCGA § 24-9-40(a) as the sole authority for subpoenaing Ms. King's medical records. That statute provides, in relevant part, that

[n]o physician ... and no hospital or health care facility ... shall be required to release any medical information concerning a patient except ... on appropriate court order or subpoena ... provided, further, that the privilege shall be waived to the extent that the patient places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding.

There is some doubt whether this enactment can even be construed as affirmative authority for a litigant to subpoena the medical reports of an opposing party who has not waived the privilege otherwise attaching to those records. Arguably, the statute provides only a protective shield to those health care providers who release a patient's medical records pursuant to an "appropriate court order or subpoena...." The question of what constitutes an "appropriate" subpoena is nowhere addressed in the statute, and it does not confer express authority on the State or another party to file a subpoena seeking a patient's medical records.

Despite this lack of specificity, the State urges that OCGA § 24-9-40(a) should be construed as implicit statutory authorization for issuance of a subpoena as an investigative tool in criminal cases. Clearly, law enforcement and public safety are compelling and legitimate state purposes. See Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999). However, the State is not entitled to exercise indiscriminate subpoena power as an investigative substitute for procedural devices otherwise available to it in the criminal context, such as a search warrant. Johnson v. State, 156 Ga.App. 496, 274 S.E.2d 837 (1980) (State cannot use a notice to produce as a procedural substitute for a search warrant). The constitutional right of persons to be secure in their persons, houses, papers and effects against unreasonable searches and seizures is itself based upon the concept of the right of privacy. Powell v. State, supra at 330(3), fn. 2, 510 S.E.2d 18.

[T]he law on the subject of unreasonable

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