2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-9.2. Medical Authorization Forms; Review of Protected Health Information

1. In any action for damages alleging medical malpractice against a professional licensed by the State of Georgia and listed in subsection (g) of Code Section 9-11-9.1, against a professional corporation or other legal entity that provides health care services through a professional licensed by the State of Georgia and listed in subsection (g) of Code Section 9-11-9.1, or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of Code Section 9-11-9.1, contemporaneously with the filing of the complaint, the plaintiff shall be required to file a medical authorization form. Failure to provide this authorization shall subject the complaint to dismissal.
2. The authorization shall provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records to facilitate the investigation, evaluation, and defense of the claims and allegations set forth in the complaint which pertain to the plaintiff or, where applicable, the plaintiff's decedent whose treatment is at issue in the complaint. This authorization includes the defendant's attorney's right to discuss the care and treatment of the plaintiff or, where applicable, the plaintiff's decedent with all of the plaintiff's or decedent's treating physicians.
3. The authorization shall provide for the release of all protected health information except information that is considered privileged and shall authorize the release of such information by any physician or health care facility by which health care records of the plaintiff or the plaintiff's decedent would be maintained.

(Code 1981, §9-11-9.2, enacted by Ga. L. 2005, p. 1, § 4/SB 3; Ga. L. 2007, p. 216, § 2/HB 221.)

- Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

Ga. L. 2007, p. 216, § 3/HB 221, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2007, and shall apply to any action filed on or after July 1, 2007."

- For article on 2005 enactment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For article, "Georgia's New Expert Witness Rule: Daubert and More," see 11 Ga. St. B.J. 16 (2005). For survey article on insurance law, see 59 Mercer L. Rev. 195 (2007). For survey article on law of torts, see 59 Mercer L. Rev. 397 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007).

JUDICIAL DECISIONS

Preemption by federal HIPAA law.

- Hospital's motion to dismiss a medical malpractice action filed against the hospital based on an individual's failure to comply with the medical record release requirement of O.C.G.A. § 9-11-9.2 was upheld on appeal as the court concluded that: (1) O.C.G.A. § 9-11-9.2 was preempted by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191; (2) the authorization set forth in § 9-11-9.2 did not satisfy the requirements for a valid HIPAA authorization; (3) the Georgia statute did not require a description of the information to be used or disclosed that specifically identified the information in a meaningful fashion; (4) the statute did not provide for an expiration date or event that related to the individual or the purpose of the use or disclosure; and (5) the statute did not contain notice of a right to revoke the authorization. Northlake Med. Ctr., LLC v. Queen, 280 Ga. App. 510, 634 S.E.2d 486 (2006).

Because the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 42 U.S.C. § 1320d et seq. (HIPAA), preempted O.C.G.A. § 9-11-9.2, a patient did not have to comply with the filing requirements of the state law prior to filing a medical malpractice action against two hospitals; hence, the trial court properly granted the patient a protective order from having to contemporaneously comply with the filing requirements of O.C.G.A. § 9-11-9.2. Crisp Reg'l Hosp., Inc. v. Sanders, 281 Ga. App. 393, 636 S.E.2d 123 (2006).

Administratrix in a medical malpractice action authorized a release of the decedent's medical records, and the medical practice moved to dismiss the complaint on the ground that the authorization did not comply with O.C.G.A. § 9-11-9.2; the motion was properly denied as O.C.G.A. § 9-11-9.2 was preempted by the Federal Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. Griffin v. Burden, 281 Ga. App. 496, 636 S.E.2d 686 (2006).

O.C.G.A. § 9-11-9.2 is preempted by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) since § 9-11-9.2 is less stringent and does not comply with the requirements of HIPAA as to notice of the right to revoke. Allen v. Wright, 282 Ga. 9, 644 S.E.2d 814 (2007).