Legal News Archive
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2010
12.02.10 Senate passes Red Flag Program Clarification Act
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11.18.10 Georgia Supreme Court: Guidance for a qualified protective orders medical malpractice cases
On November 1, the Georgia Supreme Court issued an opinion in Baker, et al. v. Wellstar Health Systems, Inc., et al. setting forth guidance for trial courts issuing qualified protective orders in medical malpractice cases. In Baker, Wellstar sought and obtained a qualified protective order so that it could conduct ex parte interviews with the plaintiff's health care providers in compliance with HIPAA. The trial court granted an order authorizing ex parte communications regarding the plaintiff's medical conditions and any past, present or future treatment. The order also limited the use and disclosure of protected health information to the present case and required Wellstar to return or destroy the information at the conclusion of the case.
On appeal, The Georgia Supreme Court determined that, although the order satisfied the federal procedural regulations enacted pursuant to HIPAA, the order was overly broad under Georgia substantive law because the order was not limited to the medical condition the plaintiff placed at issue in the present case. Additionally, the Court held that the order issued by the trial court, due to its breadth, failed to comply with the spirit of HIPAA because it did not provide the plaintiff with ample notice.
The Court stated that trial courts, when issuing orders that authorize ex parte communications with health care providers, should state with particularity the names of the health care providers; the medical conditions at issue about which the providers may be interviewed; that the communication is at the request of the defendant and is for purposes of assisting counsel; and that the provider’s participation is voluntary. Additionally, when issuing such orders the court should consider whether the circumstances warrant requiring the defense to notify the plaintiff in advance and provide the plaintiff with an opportunity to attend interviews or require the transcription of such interviews by a court reporter at the plaintiff's request.
Click here for Georgia Supreme Court ruling
Read MAG's amicus curiae brief in support of appellee's motion for reconsideration (Filed 11.18.10)
11.15.10 Joint AMA/AHA letter on MS.01.01.01 implementation
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09.15.10 MAG Alert: UnitedHealth Group UCR settlement update
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07.23.10 Georgia Court of Appeals invalidates workers' compensation rule
On July 12, 2010, the Georgia Court of Appeals held that Rule 205 of the State Board of Workers' Compensation was invalid. Rule 205 provides, in part, that if an employer fails to respond to an advanced authorization request from an authorized treating physician within five days the treatment stands preapproved.
In Selective HR Solution, Inc., et al. v. Mulligan, the plaintiff suffered a work-related back injury in 2005. The plaintiff received treatment and returned to work in 2006. In 2007, the plaintiff suffered a back injury unrelated to her employment that required surgery. The plaintiff's physician submitted a WC-205 form to the employer's insurer for advanced authorization in October 2007. In December 2007 the insurer denied advanced authorization. After the surgery was performed, plaintiff sought a claim for medical treatment. The trial court found in the plaintiff's favor because the insurer failed to respond to the request for advanced authorization within five days, per Rule 205.
Relying on the workers' compensation statute and the limited authority of the State Board of Workers' Compensation to enact procedural and administrative rules, the Court held that the rule was substantive by shifting the burden of proof from the employee to the employer and therefore exceeded the Board's rule-making authority and invaded the province of the legislature.
Read amicus brief filed by MAG
06.15.10 MAG sends letter to State Board of Workers' Compensation regarding proposed rule changes
Click here to read letter
06.11.10 Georgia Supreme Court upholds ex parte interviews with medical malpractice plaintiff’s treating physicians
In a June 1, 2010 opinion by Justice Harold Melton, the Georgia Supreme Court upheld ex parte interviews between defense counsel and a medical malpractice plaintiff's treating physicians. In Baker et al v. Wellstar Health Systems, Inc., et al, defendant Wellstar sought and received from the trial court a qualified protective order under HIPAA to engage in such communications in an effort to aid in its discovery.
On interlocutory appeal, the Georgia Supreme Court, noting that HIPAA does not address the propriety of ex parte communications, held that based on the policies underlying HIPAA and fairness in litigation, ex parte interviews may be conducted so long as the procedural safeguards of HIPAA for protecting protected health information are satisfied. The Court also held that ex parte interviews serve the beneficial purposes of equalizing access to witnesses, diminishing the overall cost of litigation by reducing the need for formal discovery, and equalizing the cost of discovery. However, the Court did find that in this case, the qualified protective order issued by the trial court was overly broad because it was not limited to matters relevant to the plaintiff’s medical condition at issue in the lawsuit.
05.28.10 FTC extends "Red Flags" rule enforcement deadline
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05.24.10 Medical societies file lawsuit to prevent FTC "red flags" rule from going into effect
The American Medical Association and the American Osteopathic Association and the Medical Society of the District of Columbia have filed a lawsuit in federal court to prevent the Federal Trade Commission (FTC) from extending its "red flags" regulations to physicians. The "red flags" rule requires creditors to implement safeguards against identity theft. The medical societies contend that the rule exceeds the FTC's powers and that its application to physicians is "arbitrary, capricious and contrary to the law."
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05.21.10 Reminder: "Red flags" rule compliance date June 1
MAG is reminding physicians in Georgia that the deadline for compliance with the Federal Trade Commission's (FTC) "red flags" rule is June 1. The rule requires creditors to institute policies to identify, detect and respond to potential risks of identity theft. MAG is encouraging physicians to have policies in place by the June 1 deadline.
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04.14.10 MAG among groups urging Joint Commission to better define "physician"
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04.07.10 Oxendine rules in favor of doctors in dispute with BCBS
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Read News from MAG article
03.24.10 MAG general counsel discusses malpractice ruling on WXIA-News 11 Atlanta
Click here to watch interview
03.22.10 Leading physician group says Georgia Supreme Court decision overturning tort reform law is huge loss for patients
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Read full press release
View Georgia Supreme Court ruling
Read MAG's amicus curiae brief filed September 2009
03.18.10 Joint commission approves MS.01.01.01 standards
The Joint Commission Board of Commissioners (BOC) unanimously approved the proposed revisions to accreditation standard MS.01.01.01 on Friday, March 12. The BOC also approved March 31, 2011, as the date for implementation, which means that the standard will be surveyed for compliance beginning April 1, 2011.
03.15.10 MAG president applauds Georgia Supreme Court decision upholding tort reform law as "triumph" for patients
Read MAG's press release
View Georgia Supreme Court ruling
Read MAG's amicus curiae brief filed October 2009
01.18.10 MAG encouraging physicians to report DEA number abuse
The Medical Association of Georgia (MAG) has discovered that some insurance companies are withholding payment to pharmacists for non-controlled substance prescriptions that do not contain a physician’s Drug Enforcement Administration (DEA) registration number -- even though a physician's DEA permit number is only required when the prescription is for a controlled substance in Georgia.
Read news article
Download form letter to Commissioner Oxendine
DEA letter to MAG (2004)
DEA consensus statement
AMA & MAG policies
01.11.10 New AMA resource on identity theft
Identity theft has become increasingly common as the prevalence of Internet and other non-face-to-face transactions have proliferated. The AMA has developed an educational resource, "Steps physicians should take if in danger of identity theft," to help physicians protect themselves if they believe their identity may have been stolen.
Click here for AMA resource
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