We granted a writ of certiorari to the Court of Appeals in Austin v. Moreland , 288 Ga. App. 270 653 SE2d 347 2007, to determine whether, in a medical malpractice case, the Privacy Rule of the Health Insurance Portability and Accountability Act “HIPAA” precludes defendant’s attorneys from informally interviewing plaintiff’s prior treating physicians. The short answer is “yes.” Following the death of her husband, Jimmy Lee Moreland, plaintiff Amanda Moreland brought this malpractice action against Dr. Michael Austin in the State Court of Bibb County. Plaintiff produced her husband’s medical records, including documents pertaining to his treatment by Dr. Jose Rodriguez, Dr. Juan Esnard, and Dr. Edward Young. Each of these physicians treated Mr. Moreland before defendant treated him. Thereafter, defense counsel contacted each of the physicians and asked them to assess Mr. Moreland’s “cardiovascular status and his prognosis.” Plaintiff objected to these “ex parte” contacts, asserting they violated HIPAA. When the trial court disagreed, plaintiff dismissed her complaint and refiled in the Superior Court of Bibb County. In that forum, in addition to her medical malpractice claims, plaintiff sought injunctive relief to prevent defendant from “inducing any healthcare provider to divulge protected health information concerning Mr. Moreland” except in compliance with HIPAA. The trial court granted injunctive relief, ruling that defendant could interview Mr. Moreland’s prior treating physicians, but only after giving plaintiff notice to enable her attorneys to be present during the interviews. Defendant appealed and the Court of Appeals reversed and remanded, holding that as long as a physician discloses protected health information in compliance with HIPAA and Georgia law, defense counsel can continue to communicate with the physician in an ex parte fashion. Id. at 275. The Court of Appeals remanded to the superior court, however, to determine whether plaintiff consented to the disclosure of Mr. Moreland’s protected health information prior to April14, 2003 the effective date of the HIPAA privacy provisions, in which case the physicians can be contacted and interviewed by defendant without restriction; or whether the physicians possess any protected health information that has not been disclosed already, in which case “the trial court may issue an order restricting the ability of the prior treating physicians to disclose such information to defendant except in accordance with the HIPAA privacy rule and the Georgia Civil Practice Act.” Id. at 275-276.
HIPAA
