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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.

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