Allen v. Wright

634 S.E.2d 518 (2006)

ALLEN et al. v. WRIGHT.

No. A06A0662.

Court of Appeals of Georgia.

July 14, 2006.

*519 Chambless, Higdon, Richardson, Katz & Griggs, David N. Nelson, Norman C. Pearson III, Martin, Snow, John C. Daniel III, Richard A. Epps, Jr., Macon, for appellants.

Savage, Turner, Pinson & Karsman, William H. Pinson, Jr., Savannah, for appellee.

Love, Willingham, Peters, Gilleland & Monyak, Allen S. Willingham, Atlanta, Robertson, Bodoh & Nasrallah, Matthew G. Narsallah, Marietta, amici curiae.

ADAMS, Judge.

Ernestine C. Wright filed a medical malpractice action against Thomas M. Allen, M.D., his professional corporation, Four Rivers Orthopedic Associates, P.C., and Meadows Regional Medical Center, Inc. Purporting to comply with OCGA § 9-11-9.2, Wright executed an authorization to release her medical records and filed it contemporaneously with her complaint. Defendants moved to dismiss the complaint, arguing that the authorization executed by Wright did not comply with OCGA § 9-11-9.2 in several respects, most notably in that it did not allow communications between defendants' attorneys and plaintiff's treating physicians outside the presence of and without first notifying plaintiff's attorney. The trial court denied defendants' motions, finding that OCGA § 9-11-9.2 was preempted by the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191; 42 U.S.C. § 1320d et seq. ("HIPAA") and that OCGA § 9-11-9.2 "conflicts with the formal discovery methods recognized under the Georgia Civil Practice Act. . . ." We granted defendants' application for interlocutory appeal to determine issues relating to the enforcement of OCGA § 9-11-9.2.

1. The identical issue raised in this appeal whether HIPAA preempts OCGA § 9-11-9.2 was recently decided as a matter of first impression by this Court in Northlake Med. Center v. Queen, 280 Ga.App. ___(2), ___ S.E.2d ___, 2006 WL 1914716 (2006). We agree with the reasoning set forth in Division 2 of that opinion and find it to be controlling here. It follows that the trial court did not err by denying defendants' motion to dismiss Wright's complaint for failure to comply with OCGA § 9-11-9.2.

2. In light of our holding in Division 1, we need not address the parties' remaining arguments.

Judgment affirmed.

RUFFIN, C.J., JOHNSON, P.J., BARNES and PHIPPS, JJ., concur.

ANDREWS, P.J., and MIKELL, J., dissent.

*520 MIKELL, Judge, dissenting.

I respectfully dissent for the reasons stated in the dissenting opinion of Presiding Judge Andrews in Northlake Med. Center v. Queen, 280 Ga.App. ___(2), ___ S.E.2d ___, 2006 WL 1914716 (2006).

I am authorized to state that Presiding Judge ANDREWS joins in this dissent.