Tender Loving Health Care Services of Georgia, LLC v. Ehrlich
318 Ga. App. 560
| Ga. Ct. App. | 2012Background
- This is a medical malpractice and wrongful death suit by Howard Ehrlich and Barbara Woods (as decedent’s son and daughter and estate administrator) against Emeritus and Staff Builders for decedent Francine Ehrlich’s death from a large Stage IV decubitus ulcer resulting from care at the nursing home (Aug–Nov 2008).
- Plaintiffs alleged vicarious and direct negligence and statutory remedies for nursing home operations and patient rights; Staff Builders was also sued for professional negligence.
- Defendants sought a qualified protective order (QPO) under HIPAA to permit ex parte interviews of decedent’s treating providers; plaintiffs refused to consent.
- The trial court denied both the QPO and a motion in the alternative to impose equal limitations on plaintiffs’ counsel; defendants appealed.
- Georgia law (Baker) requires careful, limited QPOs balancing privacy and discovery; Moreland explains HIPAA vs OCGA 24-9-40 (a), and Baker’s safeguards apply even when HIPAA-compliant.
- On appeal, the Georgia Court of Appeals affirmatively held there was no due process or equal protection violation and that the trial court did not abuse discretion in denying the QPO because the proposed order was overly broad and impermissible under Baker.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of the QPO violated equal protection and due process | Ehrlichs contend exclusion of ex parte interviews harms fair trial | Defendants argue unequal access to treating providers and denial undermines defense | No constitutional violation; Baker governs discretion and denial upheld |
| Whether Baker v. Wellstar requires the trial court to grant or uniformly deny a QPO irrespective of case facts | Court should adopt a rule granting/denying based on HIPAA compliance alone | Court should dispense with discretion and adopt uniform approach | Court may exercise discretion consistent with Baker; no new rule adopted |
| Whether the proposed QPO was sufficiently limited to comply with Baker | QPO would permit ex parte interviews of treating providers regarding relevant issues | QPO limited to medical condition at issue; equal access to witnesses | Proposed QPO too broad; not limited to medical conditions at issue; no abuse of discretion to deny |
Key Cases Cited
- Baker v. Wellstar Health Systems, 288 Ga. 336 (2010) (requires carefully crafted, limited QPOs with protective safeguards)
- Moreland v. Austin, 284 Ga. 730 (2008) (HIPAA vs Georgia law; HIPAA governs disclosures absent consent or court order; state law streamlined discovery)
- Final Exit Network v. State of Ga., 290 Ga. 508 (2012) (strict scrutiny not generally applied to rational basis challenges absent fundamental rights/suspect class)
- Dunn v. State, 286 Ga. 238 (2009) (burden in equal protection requires showing being similarly situated)
- Moreland v. Austin, 284 Ga. 730 (2008) (HIPAA vs OCGA 24-9-40; patient privacy vs discovery procedures)
- McConnell v. State, 263 Ga. App. 686 (2003) (harm cannot be shown by mere speculation in appellate review)