In this medical malpractice and wrongful death case, the plaintiffs, Howard Ehrlich,
The plaintiffs’ complaint contains the following relevant allegations.
On October 31, the decedent was examined at Cobb Hospital’s wound treatment center and was immediately transferred to Kennestone Hospital, where she was admitted for treatment due to the severity of the wound. At that point, the wound had become a “large Stage IV decubitis ulcer” that was so deep it exposed the decedent’s sacrum bone. Despite antibiotic therapy and surgical debridement of the wound, the decedent’s condition deteriorated, and, on November 5, she was discharged from the hospital and transferred to a family member’s home, where she received hospice care until her death ten days later.
In their July 2010 complaint, the plaintiffs asserted that the nursing home was vicariously liable for the negligence of their agents and employees in caring for, monitoring, and treating the decedent
The defendants answered the complaint and disputed many of the facts and the claims based thereon. During the discovery period, counsel for each of the defendants requested that the plaintiffs permit them to conduct ex parte interviews with the decedent’s treating healthcare providers, asking them to either sign a medical authorization form that complied with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
Then, in December 2010, the defendants filed a motion for a QPO, pursuant to HIPAA,
The trial court conducted a hearing on the motions, during which the defendants allegedly submitted a proposed QPO allowing them to conduct the ex parte interviews.
Ms. Ehrlich’s healthcare providers are ONLY permitted to discuss “information [that] is relevant to the medical condition^] the litigant has placed in issue in the legal proceeding.” “Relevant” information is strictly limited to the following:
1) any and all medical care she received from August 28, 2008 until her death on November 15, 2008;
2) any and all medical care involving skin care related to bedsores, decubitus ulcers, skin lesions, abscesses, or other skin breakdowns, including preventive care for same and/or Ms. Ehrlich’s propensity to develop same; [and]
3) any and all medical care for co-morbidities that could affect the life expectancy of Francine Ehrlich.
(Footnote omitted; emphasis in original.) In compliance with HIPAA, the proposed QPO expressly prohibited the defendants or their
During the hearing, the defendants urged the trial court to issue the proposed QPO, arguing that they believed it complied with the requirements for permitting the oral or written disclosure of otherwise protected health information under HIPAA, as well as the Supreme Court of Georgia’s ruling in Baker v. Wellstar Health Systems,
1. On appeal, the defendants raise two related allegations of error, to wit, that the trial court’s denial of their motion for a QPO and their motion in the alternative violated their constitutional rights to
(a) As an initial matter, the defendants argue that this Court should apply a “strict scrutiny’ analysis in deciding whether the trial court violated their constitutional rights by denying their motions. Under the strict scrutiny test, a statute that infringes on a person’s fundamental constitutional rights is “deemed unconstitutional unless the State can demonstrate it is justified by a compelling interest and is narrowly drawn to serve that interest.” (Citation omitted.) Final Exit Network v. State of Ga.,
Here, the defendants do not argue that, pursuant to a strict scrutiny analysis, HIPAA or any other federal or state statute is per se unconstitutional and invalid,
Instead, they argue that the trial court’s orders violated their fundamental right to a fair trial by preventing them from conducting ex parte interviews with the decedent’s treating healthcare providers, interviews which they characterize as an inherent and necessary
will be forced to call [the decedent’s] treating medical providers to the witness stand and blindly hope that [the providers] remember the treatment at issue, the issues relevant to their testimony, and the specific pages of their medical records containing pertinent information. [The defendants’] prohibition from preparing these witnesses for trial will result in scattered, disjointed trial testimony that reflects poorly on the witnesses and the [defendants] in the eyes of the jury, especially compared to the polished, succinct testimony of medical providers prepared for their trial testimony by [the plaintiffs].
In addition, these alleged consequences of the trial court’s order lack merit because the defendants have failed to support their assertions that the ex parte interviews are, in fact, necessary for them to obtain either affidavits or medical narratives from the healthcare providers
Accordingly, we reject as without merit the defendants’ argument that, because the trial court’s denial of their motions allegedly violates their constitutional right to a fair trial, the applicable standard of review in this case is strict scrutiny.
(b) The defendants contend that the trial court violated their equal protection rights by denying their QPO motion and their motion in the alternative, arguing that it deprived them of “equal access to interview [the decedent’s] relevant treating medical providers.” (Emphasis supplied.) It is axiomatic that, while “[t]he Georgia and U. S. Constitutions require government to treat similarly situated individuals in a similar manner,” it is also true that the
person who is asserting the equal protection claim has the burden to establish that he is similarly situated to members of the class who are treated differently from him. If the person asserting the violation cannot make the foregoing showing, there is no need to continue with an equal protection analysis.
(Citation and punctuation omitted.) Dunn v. State,
In this case, the defendants argue that the trial court’s orders denying their counsel
the right to conduct ex parte interviews of treating medical providers, while simultaneously permitting [the plaintiffs’] counsel to do so, creates two classifications among similarly situated litigants. This inequality exists even though it is axiomatic that the parties to litigation stand equal before the law.
The defendants, however, have failed to cite to any legal authority to support this broad assertion; they have also failed to cite to any evidence or legal authority that supports a finding that they are “similarly situated” to the plaintiffs in any way that is significant to an equal protection analysis, nor does the record support such a finding.
Moreover, contrary to the defendants’ assertions, the decedent’s treating healthcare providers are not “independent third party fact witnesses” who must be made equally available to all of the parties. Instead, the providers gathered the decedent’s medical information — including the information the defendants are seeking — while owing a fiduciary duty
Accordingly, we conclude that the defendants have failed to carry their burden of demonstrating that the trial court violated their equal protection rights by denying the orders at issue.
(c) Although the defendants separately enumerate as error their allegation that the trial court violated their due process rights by denying them a fair trial, the arguments and authority they offer in
In sum, we conclude that the defendants have failed to articulate or support a successful constitutional challenge to the trial court’s rulings in this case.
2. Still to be decided, however, is whether the defendants are correct in asserting that the trial court in this case was required to either issue their proposed QPO or grant their motion in the alternative, or whether the trial court was authorized to use its discretion to decide whether to issue the QPO after considering the specific circumstances presented here.
(a) In their appellate brief, the defendants explicitly request that this Court establish new legal precedent, as follows:
Carefully crafted [Q]ualified [Protective [Ojrders specifying precise parameters within which ex parte interviews may be conducted should typically be granted, but when Qualified Protective Orders are denied or provide unequal access to treating medical providers, the trial court should place the same limitations on plaintiff’s counsel as on defendant’s counsel.
(Punctuation and footnote omitted.) In other words, the defendants are asking this Court to establish a new rule stating that, as long as a defendant’s proposed QPO seeking ex parte access to the plaintiff’s treating healthcare providers complies with HIPAA and applicable Georgia law, the trial court must either grant it or prohibit the plaintiff’s counsel from conducting such interviews, regardless of the underlying circumstances of the case, thereby removing the court’s discretion in such matters.
(i) The record shows, however, that the defendants have only recently embraced its effort to have this Court establish this new precedent. Specifically, the record shows that this appeal was previously docketed in this Court as Case No. A11A1834 on May 27, 2011. In a brief they filed in that case, the defendants (as the appellants) made the following declaration:
Contrary to Appellees’ assertion, Appellants did not argue that once a QPO is sought, the trial court “should be stripped of its discretion” and enter QPOs “as a matter of course,” tantamount to a “check the box” scheme. Appellants readily acknowledged that Baker vests the trial courts with the discretion to decide whether to enter a QPO permitting ex*572 parte communications with treating medical providers. This is implicitly acknowledged by Appellants’ Motion in the Alternative, which sought to have restrictions placed on Appellees’ counsels’ access to Ms. Ehrlich’s treating medical providers in the event the trial court exercised its discretion and denied Appellants’ underlying Motion for a QPO.
(Emphasis in original and supplied in part.)
Before deciding the merits of that appeal, however, this Court remanded the case to the trial court to resolve an alleged conflict of interest of counsel. The trial court addressed and resolved that single issue, and it is undisputed that nothing occurred in the trial court that materially impacted the orders or the issues that the defendants had already raised on appeal. This case was then re-docketed as the instant appeal, and the parties again submitted briefs addressing “the original issues” raised on appeal. It is in their new appellate brief, however, that the defendants have reversed course and now argue, for the first time, that trial courts lack discretion and must either issue QPOs that comply with HIPAA and Georgia law or prohibit plaintiffs from communicating ex parte with their treating healthcare providers, regardless of the facts and circumstances distinguishing individual cases.
It is axiomatic, however, that “our appellate courts are courts for the correction of errors of law committed in the trial court. . . . Therefore, absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.” (Citation and punctuation omitted.) Safe Shield Workwear v. Shubee, Inc.,
(ii) Moreover, even if this Court was willing to embrace the new precedent proposed by the defendants, we are powerless to do so, because it conflicts with the Supreme Court of Georgia’s ruling in Baker. In Baker, the Court discussed the inherent dangers of ex parte interviews such as those sought by the defendants herein and the minimal legal requirements for QPOs authorizing such interviews.
should consider whether the circumstances—including any evidence indicating that ex parte interviews have or are expected to stray beyond their proper bounds — warrant requiring defense counsel to provide the patient-plaintiff*573 with prior notice of, and the opportunity to appear at, scheduled interviews or, alternatively, requiring the transcription of the interview by a court reporter at the patient-plaintiff’s request.
(Citations omitted.) Id. at 339-340 (3) (b). In so ruling, the Court implicitly, if not explicitly, ruled that trial courts retain the discretion to decide whether to issue such QPOs (and, if they do so, to decide whether to include additional procedural protections) even if the QPOs met the minimal legal requirements and after considering the individual facts and circumstances surrounding each case.
Thus, pretermitting whether this issue was preserved for appellate review, we are bound by the Supreme Court’s ruling in Baker
(b) Given our holdings thus far, the only remaining issue is whether the trial court in this case abused its discretion in denying the defendants’ motion for a QPO. Because we find that the proposed QPO was insufficiently limited in scope to comply with the Supreme Court of Georgia’s ruling in Baker, we find no abuse of discretion.
In Baker, the Supreme Court considered whether a trial court properly issued a QPO allowing the defendant’s counsel to engage in
the dangers associated with ex parte interviews of health care providers are numerous, including (1) the potential for unwarranted probing into matters irrelevant to the litigation yet highly sensitive and possibly prejudicial to the patient-plaintiff; (2) the potential for disclosure of information, such as mental impressions not documented in the medical record, that the health care provider has never actually communicated to the patient-plaintiff; and (3) the potential for defense counsel to influence the health care provider’s testimony, unwittingly or otherwise, by encouraging solidarity with or arousing sympathy for a defendant health care provider.
Id. at 339 (3) (a). Given these concerns, the Court ruled that, even if the QPO at issue complied with HIPAA, further analysis of the QPO was required to ensure that it complied with Georgia law, because, although “HIPAA preempts Georgia law in its imposition of procedural requirements, the substantive right to medical privacy under Georgia law endures. See King v. State,
After so considering the QPO at issue, the Court ruled that the scope of information that the healthcare providers could disclose to the defendant’s counsel pursuant to the QPO was too broad and that the QPO “should have limited [the defendant’s] inquiry to matters relevant to the medical condition Baker has placed at issue in this proceeding^ pursuant to OCGA § 24-9-40 (a)]. Without this limitation, the qualified protective order must be considered deficient.” Baker v. Wellstar Health Systems,
[T]rial courts should state with particularity: (1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical condition(s) at issue in the litigation regarding which the health care provider(s) may be interviewed; (3) the fact that the interview is at the request of the defendant, not the patient-plaintiff, and is for the purpose of assisting defense counsel in the litigation; and (4) the fact that the health care provider’s participationin the interview is voluntary.
(Citations omitted.) Baker v. Wellstar Health Systems,
Applying the Baker analysis to the instant case, the proposed QPO appears to comply with the first, third, and fourth requirements. As for whether the proposed QPO properly limited the defendants to discussing only “the medical condition(s) at issue in the litigation” with the named healthcare providers, the record shows that, by filing their complaint, the plaintiffs initiated a dispute as to the cause, extent, treatment, and consequences of the decedent’s wound. Yet, the defendants’ proposed QPO sought authorization to question the decedent’s healthcare providers about “any and all medical care she received from August 28, 2008 until her death on November 15, 2008[.]” In other words, the defendants sought permission to question the providers about all of the medical care the decedent received after she developed the wound, even if it had absolutely no relevance to the cause, extent, treatment, or consequences of her wound. Further, the defendants sought authorization to question the providers about “any and all medical care for comorbidities that could affect [her] life expectancy[,]” in other words, every health problem she had ever experienced that might have affected her life expectancy.
Thus, under the circumstances presented here, we conclude that the trial court was authorized to find that, pursuant to Baker, the
Judgment affirmed.
Notes
Howard Ehrlich sued in his individual capacity as a surviving son of the decedent and as administrator of her estate.
This Court granted the defendants’ application for interlocutory review of the trial court’s orders.
The hearing on the defendants’ motion for a QPO and motion in the alternative was not transcribed, and there are no answers to interrogatories or other sources in the record that otherwise support or contradict these allegations. We recite these allegations only to provide context to the issues on appeal, without ruling upon their accuracy or legal significance.
HIPAA “authorized the Secretary of the Department of Health and Human Services to promulgate rules and regulations which would ensure the privacy of patients’ medical information.” (Citation omitted.) Moreland v. Austin,
45 CFR § 164.512 (e) (1) provides, in relevant part, as follows:
A covered entity may disclose protected health information in the course of any judicial or administrative proceeding: (i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or (ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied hy an order of a court or administrative tribunal, if... [t] he covered entity receives satisfactory assurance ... from the party seeking the information that reasonable efforts have been made hy such party to secure a qualified protective order that meets the requirements of paragraph (e) (1) (v) of this section.... (iv) [A] covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that: (A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or (B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
See 45 CFR § 164.512 (e) (1) (v) (“[A] qualified protective order means, with respect to protected health information requested under paragraph (e) (1) (ii) of this section, an order of
See OCGA § 24-9-40 (a) (No physician shall be required to release any medical information concerning a patient except when authorized or required to by law, when authorized by the patient, or when ordered by a court; however, the “privilege shall be waived to the extent that the patient places his or her care and treatment or the nature and extent of his or her injuries at issue in any civil or criminal proceeding.”).
In Moreland, the Supreme Court of Georgia explained that, under OCGA § 24-9-40 (a),
once a patient files suit and puts his medical condition in issue, his treating physicians can then disclose his medical records and defendant’s lawyer can informally contact those physicians and orally communicate with them about plaintiff’s medical condition. HIPAA, on the other hand, prevents a medical provider from disseminating a patient’s medical information in litigation, whether orally or in writing, without obtaining a court order or the patient’s express consent, or fulfilling certain other procedural requirements designed to safeguard against improper use of the information. In other words, HIPAA requires a physician to protect a patient’s health information, unless the patient is given reasonable notice and an opportunity to object. Georgia law stands in sharp contrast: it facilitates and streamlines the litigation process; it was not designed to protect a patient’s private health information in the course of oral communications between the patient’s physicians and defense counsel. It follows that HIPAA is more stringent and that it governs ex parte communications between defense counsel and healthcare providers.
(Citations omitted.) Moreland v. Austin,
According to the Supreme Court,
[although defense counsel can engage in such discussions if a plaintiff gives his or her consent, it must be clear that the plaintiff consented to ex parte oral commu*564 nications. We will not presume a plaintiff consented to such communications simply because the plaintiff did not object when defendant sought plaintiff’s medical records pursuant to a subpoena or request for production of documents.
(Footnote omitted.) Moreland v. Austin,
The record shows that the defendants attached a proposed QPO as “Exhibit B” to their December 2010 motions. Then, after the trial court denied the motions, the defendants filed a “revised” QPO to replace the earlier one, along with a document stating that they had provided the trial court with a “courtesy copy” of the revised QPO during the motion hearing, which, as noted above, was not transcribed. The document also stated, however, that the revised QPO “had not otherwise been filed into the [c] ourt record, and Defendants are uncertain whether [the trial court] filed it into the [c]ourt record during the oral argument.” Even so, it is the “revised” QPO that the defendants claim, on appeal, that the trial court erroneously denied.
See footnote 5, supra.
None of the named providers are parties to the instant suit, nor are they agents or employees of the defendants.
Healthcare providers are free to decide whether or not to cooperate with defense counsel. HIPAA-compliant authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place.
(Citation and punctuation omitted.) Moreland v. Austin,
See Division 2 (b), infra, regarding the proposed QPO’s compliance with the Baker requirements.
In fact, we note that, although the defendants originally filed an application for interlocutory appeal from the trial court’s orders in the Supreme Court of Georgia, the Supreme Court transferred the application to this Court based upon its finding that it lacked subject matter jurisdiction. According to the Supreme Court,
this appeal does not involve the construction of a treaty or of the Constitution of the State of Georgia or of the United States and does not draw into question the constitutionality of a law, ordinance, or constitutional provision. Instead, it involves the mere application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts.
(Citations and punctuation omitted; emphasis supplied.)
Under OCGA § 24-3-18,
(a) Upon the trial of any civil case involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed medical doctor .. . shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness; provided, however, that such report and notice of intention to introduce such report must first be provided to the adverse party at least 60 days prior to trial.... Any adverse party may object to the admissibility of any portion of the report, other than on the ground that it is hearsay, within 15 days of being provided with the report. Further, any adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony. The party tendering the report may also introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise.
(b) The medical narrative shall be presented to the jury as depositions are presented to the jury and shall not go out with the jury as documentary evidence.
We note that this statute is an exception to the hearsay rule that authorizes a party to admit a medical narrative at trial in lieu of (or in addition to) producing the author of the report as a sworn witness at trial. Bell v. Austin,
We note that the privilege of shielding confidential attorney work product in Georgia is not a due process right, but is, instead, a product of statutory law. See OCGA § 9-11-26 (b) (3) (work product protection extends to “documents and tangible things” containing the attorney’s “mental impressions”).
It is undisputed that the defendants have access to the decedent’s relevant medical records.
Indeed, the questions posed by the defendants’ counsel to the nonexpert witnesses (the third party providers) and the answers thereto do not constitute attorney work product, and the fact that the attorneys intend to pose their questions to the third party providers implicates their waiver of work product protection. See OCGA §§ 9-11-26 (b) (3) (“[T]he court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigationf.]”); 24-9-24 (An attorney shall not disclose the advice or counsel he may give to his client, nor any communications between the client and the attorney.); see also McKesson Corp. v. Green,
See Baker v. Wellstar Health Systems,
See OCGA § 51-4-2 (a) (a wrongful death action may be brought by the decedent’s children if there is no surviving spouse).
See OCGA § 51-1-27 (authorizing recovery for medical malpractice); see also OCGA §§ 9-2-21 (“An action for a tort shall, in general, be brought in the name of the person whose legal right has been affected.”); 9-11-17 (a) (Every cause of action shall be prosecuted by the real party in interest, which may include the executor or administrator of an estate.); 53-7-1 (general powers and duties of an estate’s representative); 53-7-45 (authorizing the estate’s personal representative to litigate claims in favor of the estate).
See Cox v. Athens Regional Med. Center,
See footnote 19, supra, and Division 2 (b), infra.
We note that this conclusion is consistent with OCGA § 9-11-26 (c), which provides that the court “may” issue a protective order for good cause shown, as well as the general rule that “the conduct of discovery is within a trial court’s broad discretion.” (Footnote omitted.) Exxon Corp. v. Thomason,
See Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall hind all other courts as precedents.”).
Cf. Arby’s Restaurant Group v. McRae,