Facts
In the case of Green v. Pinnix, Dr. Andrew Green was employed by Northeast Georgia Physicians Group (NGPG). In March 2018, Dr. Green operated on Stephanie Karen Pinnix. During surgery, Dr. Green suspected that he had perforated Ms. Pinnix's bowel, but he was unable to find the injury. He admitted Pinnix to the hospital for observation and consulted with Dr. Cecil Brown, a trauma surgeon also with NGPG. When Pinnix showed signs of infection, Dr. Brown decided to operate; he discovered and repaired the bowel leak. Pinnix, however, continued to suffer complications from the perforation.
Ms. Pinnix sued several Defendants, including Dr. Green, NGPG, Northeast Georgia Medical Center, and Northest Georgia Health System. During discovery, Ms. Pinnix sought to depose Dr. Brown. After receiving the notice of deposition, Dr. Brown contacted the hospital's legal department. The notice was then sent to Scott Bailey, lead counsel for the Defendants who, in turn, contacted Ms. Pinnix's counsel to schedule the deposition. Bailey sent an email informing Ms. Pinnix's counsel that “Dr. Brown is an NGPG employee and therefore is our client.” Multiple emails were exchanged regarding the scheduling of the deposition.
At Dr. Brown’s deposition, Ms. Pinnix’s counsel almost immediately began questioning Dr. Brown about his conversations with Bailey and his preparation for the deposition. Dr. Brown indicated that he had spoken on the phone with Bailey and was provided a link for “nearly 1,500” pages of medical records of which he had read about 300.
Ms. Pinnix filed a “Motion for Severe Sanctions Involving Defendants’ Counsel's Multiple Ex Parte Discussions With Plaintiff's Non-Party Treating Physician.” She argued that Bailey “materially violated HIPAA when he held multiple ex parte discussions with [Pinnix's] non-party treating doctor, Dr. Brown.” According to Ms. Pinnix, Bailey was not authorized to communicate with Dr. Brown as an attorney because Bailey did not represent Dr. Brown. Pinnix moved for the trial court to strike the Defendants’ answer and preclude them from contesting liability at trial.
The trial court granted the motion in part. It determined that, under HIPAA, Bailed was required to obtain a qualified protective order before speaking with Dr. Brown. The trial court reasoned that Dr. Brown did not initially believe he was being represented by Bailey, and any attorney-client relationship did not exist until the middle of Dr. Brown’s deposition. The trial court rejected the Defendants’ argument that communications between Bailey and Dr. Brown could not violate HIPAA because Dr. Brown was employed by the Defendants. The trial court agreed that sanctions were appropriate, and it limited the scope of Dr. Brown's trial testimony and crafted a curative jury instruction. It also awarded certain attorney’s fees and costs of litigation.
Defendants sought an application for interlocutory review.
Issue & Holding
In this case, the main issue in question was: Did defense counsel violate HIPAA by either providing documents to Dr. Brown or speaking with Dr. Brown without the Plaintiff’s counsel present? The court held that defense counsel did not violate HIPAA.
Reasoning
The Georgia Supreme Court has held that HIPAA preempts Georgia's privacy waiver law and, therefore, precludes defense attorneys from engaging in informal ex parte communications with a plaintiff's prior treating physicians without first complying with HIPAA's procedural requirements. 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.” HIPAA defines a disclosure as “the release, transfer, provision of access to, or divulging in any manner of information outside the entity holding the information.”
Defense Counsel’s Providing Documents to Dr. Brown
The Court first rejected Plaintiff’s argument that defense counsel violated HIPAA by providing medical records to Dr. Brown without first obtaining her permission. It held that based upon the plain language of the relevant portions of HIPAA, this transmission of documents cannot constitute a HIPAA violation because there was no “disclosure” within the meaning of HIPAA.
Both Dr. Green and Dr. Brown were employed by NGPG, which owns the medical records at issue. Under HIPAA, a provider has access to its own records, and it may provide protected health information about a patient to other doctors within the organization in order to “conduct” or “arrange for” legal services. Indeed, the Court reasoned that the very purpose of transmitting the medical documents to Dr. Brown was to prepare him for his deposition in this case. As a result, providing the documents to Dr. Brown did not violate HIPAA.
Defense Counsel’s Pre-Deposition Communications with Dr. Brown
The Court similarly held that Bailey's communication with Dr. Brown prior to his deposition did not constitute a HIPAA violation. As Bailey was acting on behalf of NGPG, the Court reasoned, any conversation between Dr. Brown and him did not qualify as a “disclosure” because the conversation did not concern “the release, transfer, provision of access to, or divulging in any manner of information outside the entity holding the information.” 45 CFR § 160.103. The Court also concluded that the pre-deposition conversation fell within the exception permitting the disclosure of protected health information to other doctors in an organized health care arrangement for arranging or conducting legal services for the organized health care arrangement. See 45 CFR §§ 164.502 (a) (ii), 164.506 (c) (5).
Conclusion
The plaintiff’s counsel should always object to defense counsel having unauthorized ex parte communications with the plaintiff’s treating physicians, as they are generally prohibited under HIPAA. Moreland v. Austin, 284 Ga. 730, 732 (2008). Green clarifies, however, that HIPAA will not bar such communications when the treating physician works with the defendant doctor in the practice at the same hospital, all of whom defense counsel represents.
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Citation: Green et al. v. Pinnix et al., No. A23A0547 (Ga. Ct. App June 28, 2023)
