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IN THE SUPREME COURT OF THE
STATE OF GEORGIA
CASE NO. S99A1490
REBECCA LYNN KING,
Appellant,
v.
STATE OF GEORGIA,
Appellee.
BRIEF OF AMICUS CURIAE
------------------------------------------------------------------------
At the request of this Honorable Court, the Georgia Trial
Lawyers Association respectfully submits the following brief
as amicus curiae.
SUMMARY OF THE ARGUMENT
1. OCGA § 24-9-40 should not be construed to authorize
subpoenas for the production of medical information.
Instead, by conditioning the medical provider’s immunity
from liability for disclosure upon the submission of an “appropriate”
subpoena, the General Assembly has intended that external
standards of appropriateness apply to such subpoenas.
The best, well-tested, external standard is the procedure
for disclosure of medical information by means of the request
for production of documents to a third-party under OCGA § 9-11-34(c)(2),
which was enacted in the same statute with the current version
of OCGA § 24-9-40(a).
2. As to the constitutional issues, each patient has a right
to privacy in his or her personal medical information.
3. The patient’s privacy
right is not absolute. Instead, the right to privacy
is subordinate to the right of an adversary in litigation
to obtain information relevant to the claims and defenses
of the parties.
4. The right of an adversary to obtain relevant information
is, however, limited by procedural due process protections
against unqualified disclosure. As a consequence, all
methods of investigation, whether formal or informal, designed
to elicit personal medical information must afford the patient
reasonable notice and a reasonable opportunity to object and
be heard before the disclosure of medical information occurs.
5. GTLA submits that, in construing
OCGA § 24-9-40 and in resolving the issues in this
case, the Court should adopt a procedure with at least the
due process protections afforded by OCGA § 9-11-34(c)(2).
ARGUMENT AND CITATION OF AUTHORITY
I.
THE LEGISLATURE’S INTENTION TO SHIELD MEDICAL RECORDS
PROVIDERS FROM LIABILITY FOR PRODUCING RECORDS PURSUANT TO
AN APPROPRIATE SUBPOENA WILL BE FURTHERED BY INTERPRETING
OCGA § 24-9-40(a) TO REQUIRE NOTICE AND AN OPPORTUNITY
TO OBJECT.
This amicus submits that construction of OCGA § 24-9-40(a)
as authorizing the issuance of subpoenas is erroneous.
By its terms,[1] OCGA § 24-9-40(a) does not grant
to the State –- or any party to litigation, whether civil
or criminal -- the authority to use its provisions as an investigative
tool to subpoena medical records. No language in the
statute authorizes the issuance of subpoenas, and if the statute
were nevertheless construed to authorize issuance of subpoenas
for medical records, the statute would authorize the issuance
of subpoenas to all litigants, to the state and to criminal
defendants, and to civil plaintiffs and defendants, on an
equal basis. Moreover, the statutory qualification that
records may be turned over upon an “appropriate”
court order or subpoena calls for some standard of appropriateness
that is external to the statute, which does not define the
term. If the statute authorized subpoenas, then any
subpoena issued thereunder would be “appropriate,”
and the word “appropriate” would be mere surplusage.
Courts should not so interpret a statute as to make parts
of it surplusage unless no other construction is reasonably
possible. All words of the Legislature, however numerous,
ought to be preserved, and effect given to the whole, if
it can be done.
Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572, 574
(1978). For these reasons, the statute should not be
construed to authorize the issuance of subpoenas.
Instead, this Court should construe the statute in view of
its evident intent to establish the circumstances and conditions
under which “medical information” may be released
with immunity from tort claims for invasion of privacy.
The General Assembly called for a subpoena for medical records
to be “appropriate.” Unless a clear standard
for “appropriate” subpoenas applies, the medical
records provider will be saddled with the burden of determining
whether or not a subpoena in a particular case is “appropriate.”
Not only will this subject the medical records provider with
an unnecessary burden of reviewing and determining whether
or not a subpoena is “appropriate,” but it will
also subject the medical records provider to liability if
their decision is incorrect. Both results contradict
the evident intent of the legislature to relieve a medical
provider of the threat of litigation for unauthorized disclosure.
Fortunately, the General Assembly’s standard of “appropriateness”
is clear from the legislative context: OCGA § 24-9-40(a)
reached its present shape in the same bill that enacted OCGA
§ 9-11-34(c)(2), 1986 Ga. Laws 1277, §§
1, 3. In the latter statute, discussed in more detail
in Section V of this brief, patients are given ten days notice
of an adversary’s requests for production of medical records
so that they may object and seek a judicial determination before
disclosure. A purpose of the act was to “revise ...
certain procedures to secure documents from otherwise privileged
sources.” Id., 1277.
Allowing patients notice and an opportunity to seek judicial
review of a subpoena under OCGA § 24-9-40(a) in a
manner similar to OCGA § 9-11-34(c)(2) will further
the legislative intent to protect a medical records provider
from liability for producing documents pursuant to an “appropriate”
subpoena. Such a procedure will take the burden of reviewing
a subpoena for appropriateness off of the medical records provider
and place it on the patient, which furthers the goal of OCGA
§ 24-9-40(a) in protecting a medical records provider
from liability. The medical records provider will have
no liability for disclosure because failure of the patient to
object will be deemed a waiver of any claim against the medical
records holder.
II.
EACH PATIENT HAS A RIGHT TO PRIVACY IN THE PATIENT’S
PERSONAL MEDICAL INFORMATION.
An individual’s medical information is a matter of personal
privacy that is within the concept of “liberty” in
1983 Ga. Const. Art. I, Sec. I, Par. I, the due process provision
of Georgia’s Bill of Rights. This has been recognized
for over a century. The right of privacy includes information
about one’s medical condition, even if that information
is in the possession of a hospital or doctor. It includes
the patient’s entire medical record, not just communications
from the patient.
Georgia has recognized a right of privacy since Pavesich v.
New England Life Ins. Co., 122 Ga. 190 (1904) (recognizing the
right of privacy and finding that publication of a person’s
picture for commercial purposes violates that right).
The right derives from natural law, a right that is reserved
and not surrendered when one leaves the state of nature to enter
upon civil society. Id., 194. Though derived from
nature, it is recognized by municipal law and guaranteed by
the constitutions of the United States and Georgia in the prohibition
of deprivation of liberty without due process of law.
Id., 196-97. Thus, in Georgia, the right of privacy is
embraced in the requirement of due process.
The right of privacy applies to one’s bodily condition,
including a right to be free of governmental bodily intrusion
for the purpose of saving the patient’s life. Zant
v. Prevatte, 248 Ga. 832 (1982) (prisoner, by virtue of his
right of privacy, could refuse to be fed or intrusively examined,
even for the purpose of saving the patient’s life); State
v. McAfee, 259 Ga. 579, 580 (1989) (quadriplegic could terminate
his life-sustaining treatment).
The right of privacy applies as well to information in one’s
medical records, as recognized in the state’s Open Records
Law, particularly OCGA § 50-18-72(a,2),[2] which prohibits
public disclosure of records that are “Medical or veterinary
records and similar files, the disclosure of which would be
an invasion of personal privacy.” This provision
forbids disclosure of “any information which would invade
the constitutional, statutory or common law rights of ... privacy.”
Napper v. Georgia Television Co., 257 Ga. 156, 160 (1987).
Privacy protected by the Open Records Act recapitulates the
privacy protected by the common law tort of invasion of privacy.
Athens Observer, Inc. v. Anderson, 245 Ga. 63, 65 (1980); Harris
v. Cox Enterprises, Inc., 256 Ga. 299, 301 (1986).
Physicians and hospitals are therefore subject to liability
for the unauthorized disclosure of personal medical information.
Johnson v. Rodier, 242 Ga. App. 496 (1) (2000) (no professional
negligence affidavit required for invasion of privacy claim
based on physician’s conversation with patient’s employer
regarding patient’s mental state); Sletto v. Hosp. Auth.
of Houston County, 239 Ga. App. 203 (1999) (hospital liable
for sending privileged psychiatric records along with non-privileged
medical records to adversary in response to requests for production
to a third party in a personal injury case); Bala v. Powers
Ferry Psychological Assoc., 225 Ga. App. 843 (1997) (psychologist
who counseled patient liable for disclosing confidential information
about patient to lawyer representing patient’s ex-husband);
Payne v. Sherrer, 217 Ga. App. 761 (1995) (recognizing the duty
of a physician to keep information about the patient private,
but finding this duty inapplicable when the physician is appointed
by the patient’s employer to evaluate his medical condition);
Mrozinski v. Pogue, 205 Ga. App. 731 (1992) (psychiatrist liable
for unauthorized disclosure of conclusions about a child in
custody of father to ex-wife’s lawyer); Jones v. Thornton,
172 Ga. App. 412 (1984) (recognizing a physician’s duty
to protect the privacy of patients, though the duty would be
waived by the patient’s filing suit for injuries).
The scope of a patient’s privacy is not limited to the
patient’s communications. Even diagnostic conclusions
are subject to the patient’s privacy rights because such
conclusions may indirectly disclose facts which the physician
or hospital may not directly disclose. Mrozinski v. Pogue,
205 Ga. App. 731 (2) (1992). Ga. Rules & Regs. 290-1-2-.01(4)
recognizes that “laboratory findings and diagnoses, by
their very nature are confidential and personal to the person
on whom reports are made and their physicians.” In
Morton v. Skrine, 242 Ga. 844, 847-48 (1979) (refusing access
to an investigatory file on a doctor), this court recognized:
[W]hat the board is inquiring into (a physician's medical
practice) is a subject involving his patients' right to confidentiality.
... The doctor's performance cannot be totally separated
from the physical person of the patient, so an investigation
must necessarily tread on some very private ground.
Hence, the entire investigatory file was to be kept confidential
except for presentation to the State Board of Medical Examiners,
and then only under conditions allowing the hearing to be kept
private. Id., 848-49.
Consequently, a patient has privacy rights in his or her entire
medical record, since any part of it may, directly or indirectly,
refer to protected private medical conditions.
III.
THE PATIENT’S RIGHT TO PRIVACY IN PERSONAL MEDICAL INFORMATION
IS SUBORDINATE TO THE RIGHT OF AN ADVERSARY IN LITIGATION TO
OBTAIN RELEVANT INFORMATION.
All cases recognizing a right of privacy have conceded that
the right is not absolute. The right to privacy has always
been balanced, by the judiciary, against the rights of other
members of society to know and to speak. Where the individual
takes some action that gives other members of society an interest
in knowing the private fact, the courts have recognized an implied,
but limited, waiver of the individual’s right to privacy.
The right of privacy is limited by the rights of others to know
otherwise private information.
“The liberty of privacy exists, ... [b]ut it must be
kept within its proper limits, and in its exercise must be
made to accord with the rights of those who have other liberties,
as well as the rights of any person who may be properly interested
in the matters which are claimed to be of purely private concern.
Publicity in many cases is absolutely essential to the welfare
of the public.”
Pavesich, supra, 122 Ga. at 201.
“The right of privacy is not absolute, but is qualified
by the rights of others. ‘No individual can live in an
ivory tower and at the same time participate in society and
expect complete non-interference from other members of the
public.’”
Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682, 684 (1957)
(creditor of employee could notify employer of debt and seek
assistance in having it paid).
As a result, “where an incident is a matter of public interest,
or the subject matter of a public investigation, a publication
in connection therewith can be a violation of no one’s
legal right of privacy.” Waters v. Fleetwood, 212
Ga. 161, 167 (1956) (photographs of murder victim publishable).
Hence, the bodily condition of a citizen, though generally protected
by a right of privacy, may be subject to disclosure if it is
the legitimate subject matter of a public investigation.
The right of privacy may also be waived, expressly or impliedly,
but in either case a waiver is not necessarily total.
The existence of the waiver carries with it the right to an
invasion of privacy only to such an extent as may be legitimately
necessary and proper in dealing with the matter which has
brought about the waiver. [Privacy] may be waived for
one purpose and still asserted for another; it may be waived
in behalf of one class and retained as against another class;
it may be waived as to one individual and retained as against
all other persons.
Pavesich, supra, 122 Ga. at 199. In the context of the
Open Records Law, this Court has observed that a party may waive
a privacy right, and that the waiver may be made expressly or
by implication, and that the waiver may be in whole or in part.
Doe v. Sears, 245 Ga. 83, 86-87 (1980). Therefore, where
there is a waiver, there is a right to invade the person’s
privacy “only to such an extent as may be legitimately
necessary and proper in dealing with the matter which has brought
about the waiver.” Id.
Hence, a waiver of privacy by a patient’s discussing his
AIDS infection on television did not waive the agreed qualification
that his face would be obscured, nor was this privacy right
waived by his appearing on national broadcasts under similar
conditions, nor by his telling friends, medical personnel, and
a support group of his disease. Multimedia WMAZ, Inc.
v. Kubach, 212 Ga. App. 707, 709-10 (1994) (“[W]aiver in
this context is a relative term: the scope of the waiver is
related to and limited by the scope of the actions on which
the waiver is based”).
The filing of a lawsuit for personal injuries amounts to an
implied waiver of the plaintiff’s privacy to the extent
that the defendant may conduct a reasonable investigation regarding
the validity of the plaintiff's claim, but “only in a reasonable
and proper manner and only in furtherance of its interest with
regard to the suit against it,” and the reasonableness
of the investigation is a jury question. Ellenberg v.
Pinkerton’s, Inc., 125 Ga. App. 648, 651-52 (1972).
Thus, the courts have recognized that the right to privacy is
limited by the legitimate interests of others, and where a patient’s
medical condition is legitimately in issue in a case, the courts
will imply a waiver of the right to privacy as to that condition.
Nevertheless, the waiver is limited, and restrictions remain
on the use of the information, the persons to whom it may be
disclosed, and the “reasonable and proper manner”
in which it may be gathered.
IV.
THE RIGHT OF AN ADVERSARY TO OBTAIN A PATIENT’S PERSONAL
MEDICAL INFORMATION IS LIMITED BY PROCEDURAL DUE PROCESS PROTECTIONS
DESIGNED TO ENSURE THE RELEVANCE OF THE DISCLOSURE.
Procedural due process protections necessarily apply to the
disclosure of private personal medical information for two reasons.
First, the right of privacy arises from the concept of “liberty”
within 1983 Ga. Const. Art. I, Sec. I, Par. I, which provides
that “No person shall be deprived of life, liberty, or
property except by due process of law.” Second, procedural
due process pervades our entire system of justice, so that any
compulsory disclosure of information must be accompanied by
the protections of procedural due process. The judiciary
strikes the balance between competing interests in the disclosure
of privateinformation. Hence, such notice as will allow
a patient to seek judicial intervention before a disclosure
is made is required.
As noted above, the Pavesich court found that the right of privacy
was guaranteed by the constitutions of the United States and
Georgia in the prohibition of deprivation of liberty without
due process of law. 122 Ga. at 196-97. Consequently,
taken very literally, a patient may not be deprived of the liberty
of privacy “except by due process of law.” 1983
Ga. Const. Art. I, Sec. I, Par. I. Thus, where the substantive
right of privacy yields to the right of adversaries to know
the facts, due process is still required. “[T]he principles
of [procedural] due process ‘extend to every proceeding
... judicial or administrative or executive in its nature’
at which a party may be deprived of life, liberty, or property.”
Cobb County School District v. Barker, 271 Ga. 35, 37 (2) (1999).[3]
Hence, even if an investigating agency may ultimately be entitled
to obtain confidential records, a custodian may not simply turn
them over to the agency without violating a patient’s or
client’s rights to privacy. For example, a disclosure
made voluntarily, without requiring the investigating agency
to comply with procedures designed to ensure due process, subjects
a professional to liability. Roberts v. Chaple, 187 Ga.
App. 123 (1988) (accountant who disclosed client’s confidential
information to special agent for the IRS without waiting for
an administrative summons or judicial process was subject to
liability for invasion of privacy). See also Jones v.
Thornton, 172 Ga. App. 412 (1984) (treating physician, who responded
to a request for production of documents filed by the patient’s
adversary in tort litigation by mailing a copy of medical records
on the date of receipt of the request, without waiting for the
ten-day period in which the patient was authorized to object,
“was lucky” that all records related to health matters
in issue in the tort case, and thus was not liable for a breach
of confidentiality).
The judiciary must strike the balance between the public interest
in disclosure of public records and the public interest in recognizing
personal privacy. Athens Observer, Inc. v. Anderson, 245
Ga. 63, 66 (1980). Where the state or a party is conducting
an investigation into records that may include private protected
information, a procedure including in camera review is necessary
for protection of those parts of the records that remain legitimately
private. Harris v. Cox Enterprises, Inc., 256 Ga. 299,
301 (1986) (adopting procedure for determining how much of a
GBI report on the Georgia State Patrol should be released to
the public). The trial court must weigh various factors
to decide whether portions of records should be excluded from
disclosure. Id., 302 (1). It must be the trial court,
rather than the custodian of the records, that decides the question
of what must be withheld from disclosure in order to protect
legitimate privacy concerns. Id., 302 (2).
In order for the judiciary to strike the balance between competing
interests and to set the scope of the waiver of privacy, notice
must be given to the patient (or patient’s counsel in a
pending case) so that he or she may invoke judicial oversight.
The patient will know whether there is, or may be, private medical
information that is not relevant to the issues in a pending
case, whereas the prosecutor and medical records custodian (clerk)
will very likely not know or care; the custodian will probably
not know what the issues are in a pending case. The patient
must be given notice so that he or she can seek judicial orders
limiting the scope of the disclosure, or at least an in camera
review of the records to be disclosed.
Simply sending a subpoena for records, without notice to the
opposing party and an opportunity to be heard first on the validity
or scope of the documents to be produced, violates procedural
due process. For instance, the State Disciplinary Board
issued an advisory opinion in which it found the issuance of
a subpoena for the production of documents at a time and place
other than a trial or deposition to be a violation of Standard
4. Advisory Op. No. 40. The primary problem with
the procedure is lack of notice:
Non-party witnesses would be misled by such court process
into releasing confidential or privileged material without
the party having a chance to contest the relevancy, confidentiality
or privilege of the material contained in the file because
the subpoena is sent without notice to any other party or
their counsel. Notice is a concept embraced by the Civil
Practice Act. There is no need for notice of a subpoena
issue[d] pursuant to OCGA § 24-10-22(a) because
all parties receive notice of hearings and trials, so long
as they are real hearings and real trials.
The Board found such subpoenas to be a fraud upon the court,
the clerk, the person to whom the subpoena is directed, and
the opposing party and counsel.
From the foregoing, it is apparent that the implied waiver of
privacy in medical information that occurs when an adversary
has a right to know about a patient’s medical condition
does not include a waiver of procedural due process rights protecting
a patient’s rights to have the scope and limits of the
substantive waiver determined. There is, however, one
Georgia case that appears to stand for a waiver of procedural
due process rights. In Orr v. Sievert, 162 Ga. App. 679
(1982), the Court of Appeals recognized that a doctor has a
professional and contractual duty to protect the privacy of
patients, a breach of which gives rise to damages, but found
that this duty is completely waived by placing the patient’s
injuries in issue in a civil proceeding. Unfortunately,
without analyzing the scope and limits of the waiver, the court
stated that once a suit for such injuries is filed, “there
no longer remains any restraint upon a doctor in the release
of medical information concerning the patient within the parameters
of the complaint,” id, at 679-80 (emphasis added).
This amicus respectfully submits that Orr should be disapproved
to the extent that it suggests that a patient who impliedly
waives a right to keep his or her entire medical condition private
also waives the constitutional right to procedural due process
regarding any medical disclosures. Orr should be disapproved
because:
1. Orr suggests, contrary to Pavesich and its progeny, that
a waiver of the right to privacy is unlimited.
2. Orr suggests, contrary to Athens Observer and Cox, that the
records custodian is well situated to determine what is and
is not relevant to the issues in the case.
3. Orr is contrary to OCGA § 9-11-34(c)(2), which
sets forth the procedure by which medical records may be obtained.
Orr is incorrect in asserting that there is no restraint on
a doctor’s releasing medical information on patients involved
in litigation.
4. Notice to the patient will reduce the potential for abuse
and overreaching that is inherent in ex parte investigation
of the patient’s medical condition. The scope of
the implied waiver of privacy may be in dispute. Unless
the court can intervene, the scope of the patient’s privacy
rights will be decided by (a) the patient’s adversary who
is trained in the law and who knows what is in issue in a particular
case, and (b) a medical records custodian or physician who are
not trained in the law and who may rely entirely upon the patient’s
adversary to understand the issues in the case.
5. Even if neither the adversary nor the custodian want to invade
the patient’s privacy rights, both are placed in an untenable
position because the adversary does not know in advance what
information to seek and what to avoid, and the medical custodian
cannot know the legal effect of disclosures upon the patient’s
rights. Notice to the patient, leading either to consent
or a court order, is the best way to resolve doubts.
6. Notice to the patient will reduce the possibility that a
physician or hospital will (unknowingly) commit a breach of
professional ethics[4] or a tortious invasion of privacy.
7. The physician-patient relationship is a confidential one,
requiring the physician to exercise the utmost good faith to
keep the patient’s confidences and to act in the best interest
of the patient (though the physician is not an advocate for
the patient and can be required to disclose the truth about
the patient’s condition to the extent that the condition
is legitimately in issue, whether the truth is beneficial or
harmful to the patient’s case). There is in the relationship
an atmosphere of trust, loyalty, and faith in the discretion
of the physician. Ex parte disclosure of facts may be
destructive of the relationship thus founded on the physician’s
confidential and fiduciary roles.
8. Not all of the damage that can be done by overreaching ex
parte investigation can be undone by applying motions to suppress,
motions in limine, or other sanctions. For instance, the
trust reposed in the physician-patient relationship may be irreparably
injured by ex parte disclosures. Once an embarrassing
public disclosure of irrelevant private medical information
has occurred, it is too late to avoid the damage.
9. An adversary can get every bit of information about a patient’s
medical condition that is legitimately in issue in a case without
resorting to ex parte methods of investigation.
V.
THE PROCEDURE FOR OBTAINING MEDICAL RECORDS IN CIVIL CASES UNDER
OCGA § 9-11-34(c)(2) PROVIDES ADEQUATE NOTICE AND
OPPORTUNITY TO OBJECT TO SATISFY THE REQUIREMENTS OF PROCEDURAL
DUE PROCESS AND TO RENDER CONFORMING SUBPOENAS “APPROPRIATE.”
The procedure enacted by the General Assembly in civil cases
for the production of documents gives adequate notice and an
opportunity to be heard to a civil litigant. OCGA § 9-11-34(c)(2)
requires a party seeking a patient’s medical records to
give notice to the patient of the request for production to
a medical care provider, and gives the patient ten days in which
to file an objection to the disclosure, which may not proceed
until further order of the court. If an objection is filed,
the court may make an in camera review of the proposed disclosure
to determine whether there is a legitimate privacy interest
in the records and may issue any protective order under OCGA
§ 9-11-26(c) that protects such interests while allowing
legitimate discovery tocontinue. The implementation of
a similar procedure in criminal cases would satisfy any procedural
due process concerns. A criminal defendant clearly should
be entitled to the same notice and opportunity to object that
is provided to a civil litigant. Presumably, a criminal
defendant would have at least as compelling of a need to review
a subpoena for appropriateness.
Because of the heightened privacy interest that the State of
Georgia recognizes in a patient’s “medical information,”
OCGA § 24-10-22 and OCGA § 24-9-40 should
be construed to require at least the following procedure in
any case where an “appropriate” trial subpoena seeks
“medical information”: (a) Service of a copy of the
subpoena on the person or person about whom “medical information”
is sought; (b) Service of the subpoena sufficiently in advance
of trial or the giving of testimony – at least 10 days
-- so that a motion to quash the subpoena (or other proper objection)
can be filed in advance of the production of any medical information.
This amicus submits that a unified standard for an “appropriate”
subpoena of “medical information” should apply in
Georgia. This standard should be the same whether the
information is sought at trial – whether criminal or civil
-- or during pre-trial discovery. If accepted, the GTLA
argument would align the procedure for the subpoena of “medical
information” at trial with the procedure for the production
of such information from non-parties during civil discovery.
See OCGA § 9-11-34(c). With respect to the disclosure
of “medical information,” a criminal defendant should
have the same protections as a civil litigant.
CONCLUSION
For the foregoing reasons, this amicus respectfully submits
that the intention of the legislature would be furthered by
requiring that subpoenas for medical records under OCGA § 24-9-40
have the same procedural requirements of notice and opportunity
to object which are embodied in Rule 34 of the Civil Practice
Act, both as a matter of statutory construction and to vindicate
a patient’s procedural due process rights to protect legitimate
privacy interests from unwarranted ex parte disclosure.
Respectfully submitted, this July 14, 2000.
/s/
CHARLES M. CORK, III
Reynolds & McArthur
P. O. Box 6897
Macon, Georgia 31208-6897
(912) 741-6000
/s/
Albert M. Pearson, III
Moraitakis, Kushel & Pearson
Suite 425
3445 Peachtree Road
Atlanta, Georgia 30326
(404) 261-0016
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[1] In the part pertinent here, the
statute provides: “No physician ... and no hospital ...
shall be required to release any medical information concerning
a patient except ... on appropriate court order or subpoena
... .” (Emphasis added.)
[2] Recognition of a right of privacy
in medical records also occurs in the Freedom of Information
Act. 5 U.S.C. § 552 (a)(3).
[3] There is a suggestion that due
process does not apply to subpoenas issued prior to the filing
of formal charges (Wills v. Composite State Bd. of Medical Examiners,
259 Ga. 549, 551, citing Gilmore v. Composite State Bd. of Medical
Examiners, 243 Ga. 415 (1979)), but as explained above by Morton
v. Skrine, 242 Ga. 844, 847-48 (1979), the context was an administrative
hearing in which the privacy of patients would be protected.
[4] The Hippocratic Oath states, in
part, “Whatever, in connection with my professional practice
or not in connection with it, I see or hear, in the life of
men, which ought not to be spoken abroad, I will not divulge,
as reckoning that all such should be kept secret.”
(“Abroad” in this phrase bears the older meaning of
“outside” or “in public.”)
Principle IV of the AMA’s Principles of Medical Ethics
requires physicians to “safeguard patient confidences within
the constraints of the law.”
Section 5.05 of the Current Opinions of the Judicial Council
of the AMA states that “The information disclosed to a
physician during the course of the relationship between physician
and patient is confidential to the greatest possible degree.”
OCGA § 43-34-37(a)(7,11) prohibits unprofessional
conduct and acts indicating untrustworthiness.
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