Atlanta Injury Attorney Blog
The Georgia Supreme Court issued a major decision last week in Moreland v. Austin which effects Georgia car accident victims by holding that HIPAA, the Federal law protecting the privacy of your medical records, preempts the Georgia State law saying that your doctors can talk to the defense attorney without your knowledge. That means that insurance defense lawyers in Georgia can no longer meet with your doctors privately and spin the truth to damage your case. As a car accident lawyer who frequently has to guard his clients against these kind of aggressive defense tactics, I was thrilled with this decision.
Moreland is a medical malpractice case wherein the insurance defense lawyer had met with the injured person’s Atlanta doctor in an effort to hurt the Plaintiff”s case. The Supreme Court overturned the Appellate Court decision and held that unless a Plaintiff specifically grants permission, the Defense may not speak with the Plaintiff’s treating doctors. The Court even went to far as to hold that “(w)e will not presume a plaintiff consented to such communications simply because the plaintiff did not object when defendant sought plaintiff’s medical records pursuant to a subpoena or request for production of documents.”
When I was a defense lawyer and before HIPAA came into effect, I would try to set an appointment with the Plaintiff’s treating and family doctors and establish rapport. I would never fabricate things but I would certainly bring the accident photos in lower impact collisions to try to win the doctor over to my side of the argument. I have had to be careful in modifying the HIPAA releases that defense lawyers send to my clients. Many insurance companies will try to get the injured person to sign a HIPAA release in the early days following the crash so that they insurance company can get access to records and documents but this is a huge mistake.
This decision by the Georgia Supreme Court clears up years of fighting and establishes a major right for litigants. The defense can still talk to your doctors but they must do it either with your lawyer present or under whatever other terms you see fit. It is nice to see HIPAA fulfilling its original purpose. Remember to hire a lawyer before you sign a medical records release because you are opening your entire medical history up to a complete stranger when sign the document over to the insurance company.