The Georgia Court of Appeals has held that an attorney representing a practice group does not violate HIPAA by communicating with an employed non-party provider during litigation. Plaintiff sued a surgeon for a bowel perforation suffered. After the procedure, the surgeon consulted a trauma surgeon who was a member of the same physician group. The trauma surgeon operated and repaired the bowel leak.

Plaintiff sued the original operating surgeon and the practice group, who were represented by the same attorney. Plaintiff then asked to depose the trauma surgeon. The trauma surgeon contacted risk management for the practice group, who referred the matter to Defendants’ counsel. Defendants’ counsel then contacted Plaintiff’s counsel to schedule the deposition.  At the deposition, Plaintiff’s counsel inquired into communications between Defendants’ counsel and the trauma surgeon, who testified that he had received records from and spoke with Defendants’ counsel.

Plaintiff’s counsel then moved for “severe sanctions” against Defendants’ counsel for unauthorized contact with a non-party provider. The trial court agreed, ruling that Defendants’ counsel should have obtained a qualified protective order before speaking with the trauma surgeon. The Court of Appeals disagreed and reversed. The Court of Appeals held that, under the Privacy Rule, a covered entity like a physician group may disclose private health information without authorization “for any healthcare operations activities,” which includes “conducting or arranging for . . . legal services.” In reviewing the Code of Federal Regulations, the Court noted that a provider has access to its own records and an organization like a physician group may provide some information to other providers within the same organization to arrange for legal services. The Court then held that “[t]his pre-deposition conversation also falls squarely within the exception.”

Take-home: many have operated under this same reasoning for years, but this is the first Georgia appellate decision making it explicit.

The case is Green v. Pinnix, ___ S.E.2d ___, 2023 WL 4227921 (Ga.Ct.App. June 28, 2023).