*1 the result. This Code section (j) change Nor 9-11-4 does OCGA § there in situations where methods service for alternative allows for provide OCGA 9-11-4 that other, statutes besides applicable § service; provisions for service are unclear. OCGA where the or such as inapplicable provisions service It does not allow (j). 9-11-4 § Here, where do not. OCGA (a) apply they 15-11-39.1 OCGA § service in specific a clear and method for (c) provides 15-11-96 § proceedings, (j) and OCGA 9-11-4 parental rights termination § through general provisions not create an avenue does mandates specific 15-11-39.1 can override OCGA § methods of (j) only 9-11-4 allows for additional (c). 15-11-96 OCGA§ inherently appli- would be those additional methods service where applicability has inherent (a) 15-11-39.1 no cable. Because OCGA§ here, operate to make it (j) applicable. 9-11-4 does OCGA §
Therefore, that service concluding the Court of erred 15-11-39.1 was by pursuant Sexton certified mail on served in manner properly Because Sexton was proper. OCGA 15- specifically required by 9-11-4 as in OCGA provided decision which Appeals’ reverse Court of (c), 11-96 we must mail. by on Sexton certified upheld service concur. reversed. All Justices Judgment May 14, 2007. Decided Kleem, Fordham, A. & Curtis for McCamy, Phillips, Tuggle appellant. Dunn, Baker, General, Deputy Attorney E. Dennis R.
Thurbert General, Nelson, Gen- Attorney Senior Assistant Attorney Shalen S. Woodward, eral, Dagnew, Philip Meron F. appel- Kling, Bruce A. lee. ALLEN et al. v.
S06G2018. WRIGHT.
(644 SE2d
CARLEY, Justice. Dr. malpractice against action filed a medical Wright
Ernestine compliance with In ostensible (Appellants). Thomas Allen and others release Wright Ms. executed authorization OCGA § with her records, contemporaneously filed her medical which she ground moved to dismiss on complaint. Appellants of OCGA satisfy did not the failure of objections included Appellants’ several particulars. her attorneys their communicate document to authorize treating physicians presence prior outside the of and without notifi lawyer, though expressly to her even cation statute does not provide plaintiffs requisite grant authorization must such ex parte discovery rights to the defendant. The trial court denied holding dismiss, motion that OCGA 9-11-9.2 was Portability Accountability Health Insurance Act of 1996 *2 (HIPAA). review, court its The trial certified order for immediate and granted interlocutory appeal. Court of That Court ruling court’s affirmed trial in brief which noted that the preemption recently adversely Appellants’ had issue been decided App. Queen, contention Northlake Medical Center v. 280 Ga. 486) (2006) reasoning “the set forth in Division of that opinion controlling Wright, App. 554, Allen [is] here.” 518) (2006). Crisp Hosp. Regional See also App. Sanders, 281 Ga.
Appellants applied for certiorari to of the review decision Appeals. preemption question Court Because the was an issue of impression sought first Medical Center and certiorari had not been in the Northlake granted Appellants’ petition.
case, we (a) provides, part, 1. Subsection OCGA 9-11-9.2 in relevant any damages alleging malpractice..., [i]n action for contemporaneously filing complaint, of the plaintiff required shall to file a medical authorization provide subject form. Failure shall this authorization complaint to dismissal. specifies
Subsection of the statute provide attorney repre- [t]he authorization shall senting the defendant is authorized to obtain disclose protected health information contained in medical records investigation, evaluation, facilitate the and defense of the allegations complaint claims and set forth in the which pertain plaintiff applicable, plaintiffs or, to the where complaint. decedent at whose treatment issue in the This attorney’s right authorization includes the defendant’s plaintiff discuss applicable, or, plaintiffs the care treatment of the where decedent with all treating physicians. or decedent’s states
Subsection pro- provide for the release all authorization shall [t]he except information that is consid- information tected health privileged the release such and shall authorize ered facility by by any physician or health care which information plaintiff plaintiff s records of the or the decedent health care would be maintained. integrity
The intent of HIPAA is “to ensure confidentiality patients’ protect against information and [Cit.] of the information.” unauthorized uses or disclosures promulgating set forth The rules standards govern “protected health informa- the disclosure collectively providers, “the known as tion” Privacy health care any expressly preempts provi- [Cit.] Rule.” contrary provisions of HIPAA. of State that is sion [Cits.] provi supra Queen,
Northlake Medical Center v. at 511-512 impose on the sions of OCGA *3 malpractice brings medical a action in this state file a who medical contemporaneously complaint. form Gen authorization eral requisite expressly provided Assembly that could have comply provisions HIPAA, did but it not. authorization of Thus, enacted, is the issue becomes whether OCGA by a [S]tate it is HIPAA. “Where unenforceable because give law, with, frustrates, former must conflicts or federal statute way. CSXTransp. (I) 658, 663 Easterwood, v. U. S. SC [Cits.]” 387) (1993). 1732, 123 LE2d recognized Appeals, the Court of in order to
As was protected patient’s to disclose health authorization elements, one of which is notice of information must contain certain right v. the authorization. Northlake Medical Center revoke supra (2). By terms, Queen, at 512-513 its OCGA 9-11-9.2 does pro- require form contain such a notification the authorization Appellants urge immaterial, since the vision. that this is always thereby complaint revoke the entitled to dismiss the requires accompany it. How- authorization which OCGA 9-11-9.2 fallacy ever, of in this assertion is that revocation the authoriza- simply of the lawsuit. HIPAA tion is requires the indirect result of dismissal right patient expressly to revoke
that a be informed directly. significant There difference between authorization given patient requirement express of be to a medical notice protected right medical to revoke an authorization of access simply recognizing information, and that the exercise of his or her legal right of dismissal of the lawsuit can have an effect similar to a requires direct revocation of the authorization itself. HIPAA right patients be informed of their revoke an authorization form. recognize right The federal statute does to dismiss a prerequisite lawsuit which the submission of an is a equivalent informing patient right is the of of functional his or her to revoke the authorization itself.
Therefore, we conclude OCGA 9-11-9.2 does not suffi- ciently comply right with the HIPAA of notice revoke.
This Court construe statutes to avoid absurd re- system separation However, [Cit.] sults .... under our powers authority Court this does not have the to rewrite “(T)he separation powers statutes. doctrine of is an im- principle strictly mutable constitutional must statutory doctrine, enforced. Under that construction be- longs legislation legislature. courts, to the to the We can not add a to the [Cit.] line law.” Fielden, 444,
State
Ga.
provisions
HIPAA
related
established in the Code of
Regulations expressly supercede any contrary pro-
Federal
except provided
visions
[S]tate
law
in 42
U.S.C. 1320d-7
(a) (2).
exception,
Under the relevant
its stan-
preempt
dards do not
state law if the state
relates
privacy
individually
health
identifiable
information and
stringent”
requirements.
is “more
[Cits.]
than HIPAA’s
FSupp.2d
(D.
(A)
2004).
Zuckerman,
Law
708-709
Md.
“
stringent’...
patients
‘[M]ore
mean[s] laws that afford
more control
(Emphasis
original.)
their
over
records.”
Law v. Zucker-
supra
(A).
any
impose
man,
at 709
Because OCGA 9-11-9.2 fails to
express requirement
revoke,
ofnotification ofthe
it is
*4
provisions
satisfy
failing
its
to
while
to
the more strin-
gent requirements
Therefore,
of HIPAA.
the state statute
been
has
preempted by
Supremacy
the federal law. “The
Clause of the United
preempts
States Constitution dictates that federal law
inconsistent
Poloney
(1) (412
Tambrands,
state law. [Cit.]”
v.
2. In addition to the statute’s failure to
for
the
notice of
right
revocation,
the Court of
in Northlake Medical Center
supra
(2),
Queen,
at found “that the
set
forth
contrary
satisfy
it
to HIPAAbecause
does not
OCGA
requirements
[in
a
HIPAA authorization
several other
for
valid
agree
holding
respects].
in that
that
We
[Cit.]”
specific
meaningful
require
a
identification of
and
failure
expiration
provide
for an
be disclosed and
failure to
information to
expiration
additional bases
sufficient
event are
date or a
contrary
support
9-11-9.2 is
to HIPAA
the conclusion “that OCGA
preempted by
exceptions
applies, [so]it is
HIPAA.
none of the
...
and
supra
Queen,
at 514
Northlake Medical Center v.
[Cit.]”
Dixon,
u.
On the dissent states: of a in OCGA 9-11-9.2 [T]he mere absence a statement of that revoke, authorization contain example, statute inconsistent does render the be drafted that as an authorization could required under the state law and includes both the elements explaining plaintiffs right revoke. also statement “specific require Likewise, the failure state law meaningful description” the information to be re- preclude description such leased does not inclusion of required by explicit HIPAA, and the failure to expiration preclude the inclusion of date or event does not such. “Georgia
However, provides this observation fails take into account thing express in an Act or statute mention of one things. implies State, all Abdulkadir [Cit.]” exclusion of other *5 - statutory principle “Exprés construction, Pursuant to the of (if things expressly sum cessare facit taciturn” some stronger mentioned, the inference is that those omitted were excluded) companion, intended to be and its the venerable “Expressio principle, (“The unius est exclusio alterius” ex- press thing implies mention of one of exclusion an- other”), presumed the list of in [a statute] actions is to specifically ([cit.]), exclude actions not listed omis- regarded by [additional actions] [the sion of from statute] is [Cits.] the courts deliberate. Properties Group Doe,
Alexander
v.
306,
280 Ga.
statutory
is
dissent
correct
the established rules of
interpret
construction
the courts to
as valid
statute
when-
possible.
Co.,
Banks v.
ever
Ga. Power
200) (1997);
(1)
Davis,
State Ga. v.
J.,P. who concurs in and dissents in Presiding concurring part dissenting Justice, in HUNSTEIN, part. agree majority While I that subsection of OCGA purports require plaintiffs authorize release alleging malpractice, all their medical information cases preempted by Privacy agree Rule,1 the HIPAA I do not remaining provisions preempted. so of OCGA 9-11-9.2 are Accord- ingly, portion ority’s respectfully maj I from that dissent preempted by holds subsections to be HIPAA. preemption provisions, pre-
Under HIPAA’s state law empted by Privacy only is, Rule if the relevant HIPAA standard “contrary question. instance, in the first to” state law 45 CFR “contrary § 160.203.AHIPAA standard will be deemed to” state law *6 “impossible comply it if would be the [s]tate with both and federal requirements” provision or “ft]he [s]tate law stands as obstacle accomplishment purposes objec- and and execution of the full starting point Thus, tives of CFR [HIPAA].” § 160.202. the for analysis possible comply herein should it is be whether with OCGA complying § 9-11-9.2 while at the same time with the letter and the spirit of HIPAA. (a) prescribes generally §
OCGA 9-11-9.2 that a in a malpractice medical contemporaneous action must file a medical authorization form complaint. the
with Subsection the statute prescribes required some content for the it authorization: must authorize the release of the medical records to defense investigation, evaluation, counsel “tofacilitate the claims and and defense ofthe allegations complaint”; set forth the it and must authorize defense counsel to “discuss the care treatment of the plaintiff... physicians.” treating (b). [his] with all of OCGA§ 9-11-9.2 provides requir- authorization, Subsection further content for the ing “provide protected that it the all for release of health information except by physician privileged any information is considered ... facility by plaintiff... health or care which health care records of the (c). would be maintained.” OCGA§ 9-11-9.2 reasoning majority, Under the of the which affirms the Court of Appeals’ prior holding reliance on below its Northlake Medical App. 486) (2006), Center v. Queen, required § 9-11-9.2 is because the thereun- comport der does not the HIPAA with for valid autho- Privacy prescribes specificity rizations. Rule the elements required (1) “specific meaningful” a valid authorization: a description (2) released; of the information to be identification of the person(s) (3) information; authorized to release the identification of person(s) (4) information; authorized to the receive statement of purpose (5) expiration “expiration release; or date event Privacy Rule,” Throughout 45 CFR Parts 160 & 164. this terms “HIPAA “Privacy Rule,” interchangeably. “HIPAA” used subject [who of the medical the individual that relates to records] signature (6) purpose individual’s [release]”; or Privacy (c) (1). addition, In Rule and date. 45 CFR 164.508 “adequate place requires to include statements authorizations right rights such as the individual’s on notice of” certain individual (c) (2). Notably, revoke the authorization. CFR 164.508 to Privacy contain valid authorization “[a] Rule also states required this or in addition to elements elements section, information provided elements or information are such additional required by 45 CFR the elements this section.” not inconsistent with (ii). (b) (1) § 164.508 majority Appeals affirms, held, and the herein does
The Court of specifically required preemption incorporate OCGA§ because required literally byor the elements either reference (c). majority However, the and the Court of under 45 CFR 164.508 recognize fail to that this omission does make state might necessarily HIPAA, as it inconsistent draft an authorization that would with both OCGA 9-11-9.2 (c). Appeals, majority Like and 45 CFR 164.508 appears the Court of equate required certain elements to a the absence of statutory prohibition However, the their inclusion. mere absence on 9-11-9.2 that the authorization contain example, revoke, does statement of the not render the could be inconsistent with as an authorization drafted statute *7 required the the state law and that includes both elements under also explaining Likewise, revoke.2 a statement to require “specific meaningful descrip of law to failure the state a and preclude tion” of information to be released does not the inclusion required by description HIPAA,3 such and the failure to of information to requires to be thereto that tion” party information consenting would not run or her entire medical zation would discussed 3 Though can be requirement to a Such (Dec. 28, 2000). proceeding authorized a sought. there below. subject statement would have authorized the Court afoul intended authorized for release under OCGA 9-11-9.2 is of concern for other production was violated was no intent of See 65 Fed. and has for record, complaint of for disclosure. compel specificity release, of his put as the drafters of the the authorization by virtue of Reg. his or her medical condition at issue will to dismissal. See or her “disrupt also held that HIPAA’s it is If an individual wishes to authorize at 82517 include an clear from protected current of description, (“There breadth of the information can so explanation health Privacy OCGA§ practice whereby preamble specify’). However, information.” rather no limitations on the information “specific Rule made clear in the 9-11-9.2 than revocation of and (a). an individual Privacy limitation [the meaningful descrip 65 Fed. Such a not OCGA § disclosure prevail the breadth of Rule that this consequence the authori Reg. 82462, on preamble who reasons, scope, without of] is a his of explicit expiration preclude an date or the inclusion event does of such.4
Contrary
Appeals’ position
to the Court of
in Northlake Medical
majority’s
construing
herein,
Center and the
OCGA 9-11-9.2
harmony
HIPAAby recognizing
possibility
creating
with
complies
rewriting
authorization that
with both does not constitute
481) (1967)
Dixon,
the statute. See
v.
Buice
721) (1980) (“[a]
presumed
legis-
11statutes are
to be enacted
knowledge
existing
lature with full
condition of the
they
it;
reference
are to be construed in connection and in
harmony
existing
meaning
law;
with the
and their
and effect will be
only
connection,
determined in
the common law and the
Constitution, but also with reference to other statutes
courts”) (punctuation omitted).
decisions
majority
principle
“expressio
invokes the
unius est exclu-
argue
that,
sio
alterius” to
because
OCGA 9-11-9.2
expressly prescribe
required
authorization,
some
content for the
we
potential
prohibited. Though
must assume that all other
I
content
dispute
general principle
express
have no
mention of thing
implies
things omitted,
in a statute
I
exclusion of those
also
believe this inference
be rebutted where such a construction
words,
would render the statute at
In other
in a
issue invalid.
case
principle
“expressio
where the
unius est exclusio alterius” runs
principle
counter to the
that statutes should be construed to maintain
*8
validity,
yield
their
the former
have to
to the latter.5
4
example,
expire
For
the
be
authorization could
drafted to
at the conclusion
the
litigation pursuant
to which the authorization was filed.
5
majority
support
position
As none of the cases the
in
of its
involved the construction
cites
law,
compel
potentially preemptive
they
necessarily
of a statute
another
do
vis-á-vis
Doe,
(626
majority
Properties Group
(1)
result the
advances. See Alexander
This is presumption legislature support enacted statute at existing knowledge it would law and with intent that with issue coexist in by, harmony with, than such law. rather correctly recognized Specifically, in the Northlake as dissent Center, Medical Georgia existing enacted[,] OCGA 9-11-9.2 was §
when provided complaint, by filing malpractice that, a medical privacy plaintiff plaintiff in the s medical waived — necessity by a of waiver written records without the — complaint placed to the extent the medical authorization treatment... issue in the medical care and at civil action. App. (Andrews, J.,P. Center, 280 Ga. at 518
Northlake Medical dissenting). enacted, Indeed, at the time OCGA 9-11-9.2 was placing litigation as at issue in acted of one’s medical condition patient’s right privacy in his records waiver of a automatic 6(a), Georgia condition, 24-9-40 case law related to OCGA long App. principle. Sievert, 162 reaffirmed this See Orr v. Ga. had Assembly that,
It § the General enacted follows when OCGA necessity existing Georgia there was no under law to file a written medical complaint to authorization with the establish a waiver of plaintiffs privacy rights in medical records. There relevant necessity, existing however, under was federal law such HIPAA. App. (Andrews, J.,P. Center, 280 Ga. at 518-519
Northlake Medical dissenting). implication, thus, The is that 9-11-9.2 was only knowledge of, of,HIPAA, enacted not but indeed a result supports should be con- further the notion the statute harmony possible.7 to the extent strued in therewith Notwithstanding the fact that I believe it in 45 CFR both 9-11-9.2 and technical production offending 497) (2006) (construing pornography prohibiting as not child statute State, 50) (2005) judicial proceedings); (2) materials in (construing rape Abdulkadir v. prosecutions molestation). applicable for child shield statute (a). date, Legislature To has not amended OCGA 24-9-40 history legislative further indicates that those who enacted the of OCGA 9-11-9.2 Crockett, cognizant McArthur & Matthew of HIPAA. See Hannah Yi Rebecca statute were Walker, Sheet, Practice, Rev. 22 Ga. St. U. L. Peach Torts Civil
19 (c) by utilizing containing 164.508 an all § authorization elements required enactments, under both I do not it believe to (c) violating § subsection of OCGA without the overall purpose Privacy namely, protecting privacy Rule, of the medical greater affording individuals control over their medical own infor- Reg. (Aug. 2002); Reg. 14, mation. See Fed. 65 Fed. at plaintiff 82463-82464. The statute’s authorize the regardless (non-privileged) information, release of all of its objectives. case, Further, relevance to the runs afoul of HIPAA’s discovery scope designed existence of civil to enforce rules relevancy (c), limitations not of does ameliorate the effects subsection object because the burden would rest already information, release of of disclosure which he has been compelled Privacy specifically to authorize. Given that Rule was designed to shift of control medical information back to the indi- (c)
vidual, I believe subsection “stands as an obstacle to the accomplishment purposes of,” and execution of the full thus “contrary Privacy to,” Rule. See 45 CFR 160.202.
Havingbeen “contrary (c) HIPAA, OCGA§ found to” 9-11-9.2 will preempted stringent” require- it be unless is “more than HIPAA’s (b).8 stringent” means, 45 CFR § essence, ments. “providing] greater privacy protection 160.203 “More individual.” See 45 (c) clearly provide CFR § 160.202. Given that subsection would less protection privacy, stringent” it for individuals’ medical “more preempted. than HIPAA and thus is preserving validity
It should be noted that of 9-11- (c) finding pre- 9.2 subsections while subsection be empted specifically comports intent of the General Assem- bly, expressed enacting explicitly tort reform act of which part, is a OCGA 9-11-9.2 any section, subsection, sentence,
[i]n the event or or clause phrase adjudged of this Act shall be declared or invalid adjudication unconstitutional, such af- shall no manner sections, sentences, subsections, clauses, fect the other or phrases Act, ofthis offull which shall remain force and effect [provision] adjudged as if the or invalid unconstitutional originally part were hereof. p. (statutes presumed 1, §
Ga. L. 14. OCGA§ See also 1-1-3 provisions may severable, be such that invalid struck without Privacy prescribes exceptions preemption, Rule three other none of which are applicable See CFR here. 160.203. invalidating statute). severance of an This has held that entire Court preservation remaining portion valid a statute and invalid long remaining portion portions “the is authorized as purpose legislature accomplishes [Cits.]” intended. [statute] Here, it State, 261, 264 Nixon purpose appears 9-11-9.2 was the overall filing a medical condition to the as a threshold impair striking (c) malpractice action, does not and the of subsection purpose.9 this
Accordingly, I affirm the decision of Court would only to be of OCGA 9-11-9.2 as it holds subsection insofar holding preemption HIPAA; to its reverse as *10 (b); superior and remand to 9-11-9.2 subsections appellee’s light to dismiss in ofthe for reconsideration of motion court foregoing. May 14, 2007.
Decided Higdon, Griggs, Chambless, Richardson, Nel- & David N. Katz Napier, son, III, Martin, Snow, Grant Norman C. Pearson & John C. appellants. III, for Daniel
Savage, Pinson, Jr., Turner, Karsman, & H. Pinson William Myers, áppellee. Zachary Thomas, Moore, Lawrence J. H. Smith Berry, Seigler Richardson, Fletcher, Brinson, Askew, & Norman S. Willingham, Monyak, Willingham, Love, Peters, & S. Gilleland Allen Monyak, Nasrallah, Robertson, & Matthew G. Nas- Robert P. Bodoh rallah, Adams, III, Charles R. Adams amici curiae. Adams & PIPKIN al. v. al.
S07A0017. et BOGGS et SEARS, Chief Justice. interlocutory injunction appeal issued
This involves February dispute development 9, 2006, over a land contract. On against Pipkin, Timothy Boggs in the B. filed suit F.W. Sr. and others brief, Lawyers (“GTLA”)argues Georgia In Trial Association that OCGA its amicus preempted entirety 9-11-9.2 is in its extent subsection construed to plain provision permitting parte to include a ex communications between treating physicians holding counsel. In the statute under the tiffs defense Center, authority did not the merits of this Northlake Medical Court reach therefore, and, argument, neither do I.