This action originated with a medical malpractice complaint filed on March 31, 2009 by Russell Baker against Wellstar Health Systems, Inc. individually and d/b/a Wellstar Kennestone Hospital. To aid in its discovery, Wellstar filed a motion for a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 HIPAA, requesting that it be allowed to conduct ex parte interviews with Baker’s health care providers. After oral argument, the trial court granted Wellstar’s motion, finding that HIPAA allows ex parte interviews as long as procedural safeguards to ensure privacy are kept in place. See 45 CFR § 164.512. The trial court found support for this finding in Moreland v. Austin , 284 Ga. 730 670 SE2d 68 2008. We now review this matter on an interlocutory basis to determine whether the protective order in this case comports with Moreland v. Austin , supra, and the requirements of HIPAA. 1. As we explained in Moreland v. Austin , Under Georgia law, it is clear that a plaintiff waives his right to privacy with regard to medical records that are relevant to a medical condition the plaintiff placed in issue in a civil or criminal proceeding. OCGA § 24-9-40 a; Orr v. Sievert , 162 Ga. App. 677 292 SE2d 548 1982. Therefore, under Georgia law, once a plaintiff puts his medical condition in issue, defendant can seek plaintiff’s protected health information by formal discovery, or informally, by communicating orally with a plaintiff’s physicians. Footnote omitted. Id. at 732. “HIPAA, however, preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff’s prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians.”1 Id. at 733. HIPAA was enacted to ensure the privacy of an individual’s medical information, and it allows disclosure of protected health information2 only under certain circumstances. A “covered entity may disclose protected health information in the course of any judicial . . . proceeding” either in response to an order of a court or in response to a subpoena, a request for discovery, “or other lawful process.” 45 CFR § 164.512 e 1. Of course, the information can be disclosed without a court order, if the patient signs a valid authorization. 45 CFR § 164.508 c. See also Allen v. Wright , 282 Ga. 9, 12, 644 SE2d 814 2007. In the absence of a patient’s consent, a healthcare provider cannot disclose protected health information unless it receives “satisfactory assurance . . . that reasonable efforts have been made either A . . . to ensure that the individual who is the subject of the requested protected health information . . . has been given notice of the request” and an opportunity to object or “B . . . to secure a qualified protective order” prohibiting the litigants from disclosing the information outside of the proceeding and requiring the destruction or return of the information following the termination of the proceeding. 45 CFR § 164.512 e 1 ii-v. Footnotes omitted. Id. at 731-732.
HIPAA does not address the propriety of ex parte interviews, and neither its text nor its regulations authorizes or prohibits these interviews. Based upon the policies underlying HIPAA and fairness in litigation, we conclude that ex parte interviews may be conducted under HIPAA, if the procedural requirements for protecting information disclosed during these interviews have been satisfied.
