This action originated with a medical malpractice complaint filed on March 31, 2009 by Russel 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 permitted to conduct ex parte interviews with Baker’s health care providers. After oral argument, the trial court granted Wellstar’s motion, finding, under the authority of Moreland v. Austin , 284 Ga. 730 670 SE2d 68 2008, that HIPAA allows such ex parte interviews as long as specified procedural safeguards are utilized to protect patient privacy. See 45 CFR § 164.512 e. We now review this matter on an interlocutory basis to determine whether the protective order in this case comports with HIPAA, as we have recently construed it in Moreland , supra. 1. In proceedings in which a litigant’s medical condition is at issue, Georgia law generally permits ex parte communications between the litigant’s treating physicians and opposing counsel, under the theory that the litigant’s right to medical privacy as to the condition at issue has been waived. Moreland , supra, 284 Ga. at 732. See also OCGA § 24-9-40 a “the privilege shall be waived to the extent that the patient places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding”. However, “HIPAA preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff’s prior treating physicians.” Moreland , supra at 733. Post-HIPAA, “in order for defense counsel to informally interview plaintiff’s treating physicians, they must first obtain a valid authorization, or court order or otherwise comply with the provisions of 45 CFR § 164.512 e. Cit.” Id. at 734.
In this case, Wellstar sought to “otherwise comply” with 45 CFR § 164.512 e by obtaining a “qualified protective order.” A qualified protective order consists of an order of a court . . . that: A prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and B requires the return to the health care provider or destruction of the protected health information including all copies made at the end of the litigation or proceeding. Id. at 1 v. Under 45 CFR § 164.512 e, the disclosure of protected health information1 is authorized in the course of judicial proceedings if the party seeking the information provides “satisfactory assurance” of its “reasonable efforts . . . to secure a qualified protective order.” Id. at 1 ii B.
