Last week, the Georgia Supreme Court issued a ruling which denied the plaintiff in a
medical malpractice case access to transcripts of the defendant being interview by their attorney
as party of the discovery process. The plaintiff had argued that they
were entitled to the transcripts under the federal Health Insurance Portability
and Accountability Act (HIPPA). However, the Georgia Supreme Court held
that these documents were protected under the attorney-client doctrine. The
attorney-client privilege is a legal concept which protects certain communications between a client
and their attorney.
Plaintiff’s wife died of ovarian cancer after physician failed to
remove fallopian tubes and ovaries during elective hysterectomy.
The plaintiff in this matter is the husband of a woman who died of ovarian
cancer, allegedly due to the medical malpractice of a Wellstar physician.
In 2006, the Wellstar physician, James Sutherland, performed an elective
vaginal hysterectomy on the plaintiff’s wife. While the physician
originally planned to remove her fallopian tubes and ovaries during the
procedure, he was unable to do so safely. In June 2008, the patient was
diagnosed with advanced stage ovarian cancer. She died for the illness
in January 2010.
The plaintiff brought a medical malpractice lawsuit against both the physician
and the health system. According to the plaintiff, his wife’s fallopian
tubes and ovaries should have been removed during her hysterectomy due
to several factors, including an increased risk of ovarian cancer based
on family history of the illness.
The trial court allowed plaintiff to access defendant’s interviews
with other medical providers who had treated the patient; defendants appeal.
With the trial court’s permission, the defendants conducted interviews
of other healthcare providers who had treated the plaintiff’s wife.
The interviews were conducted for the purpose of determining the development,
diagnosis, and treatment of her medical condition.
During discovery, the trial court granted the plaintiff’s motion
requiring the defense to produce transcripts of these interviews; the
defendant’s appealed to the high court. In November of last year,
the court agreed to review the matter.
Georgia Supreme Court overturns trial court’s decision, says HIPPA
does not require disclosure of attorney-client work product.
Overturning the trial court’s decision, the Supreme Court explained
that HIPPA doesn’t entitle individuals to access attorney-client
work product, just because it contains protected health information. According
to the high court, HIPAA’s language and focus does not obligate
a party to turn over documents which are afforded privileges and protections
under state law.
A statement issued by the defense attorney’s after the ruling was
issued explained that an important aspect of the decision is that it clarifies
that oral disclosures of health information made by physicians to their
attorneys due not constitute medical records, which must be produced under
HIPPA rather, these disclosures are the lawyer’s work product.
If you or a loved one have been injured as a result of a physician’s
medical malpractice, you should contact an attorney immediately. An attorney
can review the facts of your case and provide the representation and guidance
you need to get the compensation you deserve.