Certori of lower court example of format bring rissler petitioned
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- 1. SUPREME COURT STATE OF GEORGIAALVISTA HEALTHCARE CENTER,)
INC. , UNITED HEALTH SERVICES ) OF GEORGIA,INC. , UNITED )HEALTH
SERVICES,INC. , PRUITT )'4CORPORATION,OHS-PRUITTCASE NO. 3 on c
too.55HOLDINGS,INC. ,) ) ) Petitioners,) ) COURT OF APPEALS V.)
CASE NO.A08A1899 ) ) ) ) )MARY MILLERRespondent. PETITION FOR WRIT
OF CERTIORARIGlenn P.Hendrix Georgia Bar No.346590 Jason
E.BringGeorgia Bar No.082498 Robert T.Strang,III Georgia Bar
No.675101 W.Jerad RisslerGeorgia Bar No.142024ARNALL GOLDEN GREGORY
LLP171 17th Street,NWSuite 2100Atlanta,Georgia 30363-1031 (404)
873-8500Counsel for Petitioners2560526v4
- 2. PETITION FOR WRIT OF CERTIORARIThis Petition seeks guidance
on resolving the tension between federal regulations,which impose
strict privacy standards on healthcare information,and less
stringent Georgia law,which purports to allow broad access to the
health information of a decedent.Caught in the middle are
healthcare providers who are subject to the federal Health
Insurance Portability and Accountability Act of 1996,
PUB.L.NO.104-191 (HIPAA) and the corresponding regulations,45 C.
F.R.Parts 160 and 164, Subparts A and E (the HIPAA Regulations).
The impasse in this case arose when Petitioners received a request
from Respondent,Ms.Mary Miller,for the health records of her
deceased husband.Ms.Miller was not a personal representative of her
husbands estate,which had not yet been probated.Instead,Ms.Miller
requested the records in her capacity as a surviving spouse
contemplating a potential wrongful death action.But for the privacy
rule of HIPAA,Ms.Miller would have been allowed,under Georgia
law,to access those records as a survivor entitled to bring a
potential wrongful death action.& O. C.G. A. 31-33-2 (a)
(2).Under the more restrictive HTPAA Regulations,however,the
Petitioners are precluded from releasing the records because
Ms.Miller does not have authority to act on behalf of (45 C. F.R.
l64.502(g)(4)) the decedent or his estate.As a potential wrongful
death claimant, Ms.Miller acts in her own capacity and
interest.Because HIPAA prohibits2560526v4
- 3. disclosure of the medical records and preempts State law
purporting to allow disclosure,Petitioners are precluded from
disclosing the records}The Court of Appeals acknowledged that OCGA
31-33-2(a)(2)(B) would be preempted by HIPAA to the extent that it
gives a person the right to obtain protected health information of
a patient without satisfying all HIPAA requirements.
Nevertheless,it found that the I-IIPAA Regulations do not preclude
disclosure of the medical records.(_e_e February 17, 2009 decision
at 9 (Ct App.Dec. ) attached hereto as Exhibit 1.) In reaching this
conclusion,the Court of Appeals held that a surviving spouse
pursuing a wrongful death claim acts on behalf of the decedent or
his estate,rather than on the survivor s own behalf.This holding
represents a substantial departure from longstanding Supreme Court
precedent regarding the nature of a claim under the wrongful death
statute.In effecting this change of law,the Court of Appeals
circumvented a line of Supreme Court decisions by labeling them
unbinding dicta. (Ct.App.Dec.at 8, 11.15.)This Court has championed
the privacy interests of patients in their healthcare
information.See,e. g.,King v.State,272 Ga.788, 790 (2000)
(recognizing a1 Under HIPAA,if health care providers release health
information in violation of the regulations,they facestiff civil
(and even potentially criminal) sanctions that are imposed directly
by the federal government through the Office for Civil Rights of
the Department of Health and Human Services (OCR).See generallv
http: //www. hhs. gov/ ocr/ privacy/ enforcement. In an effort to
obtain clarication regarding the release of a decedenfs records to
a family member,Petitioner Pruitt Corporation sought guidance from
the OCR which conrmed Petitioners interpretation of the interplay
between the federal HIPAA regulations and Georgias health records
statutes,determining that a survivor does not act on behalf of a
decedent and therefore may not obtain the decedents medical
records.A copy of the OCRs determination letter,which is in the
record,is attached hereto as Exhibit 2. The Court of Appeals
decision conicts with the OCRs analysis of the interplay between
HIPAA and Georgia law. 2560526v4 - 2 -
- 4. constitutional right to privacy in ones medical records and
in the information contained therein);Kennestone Hospital
V.Hopson,273 Ga.145 (2000) (holding that a ten day notice provision
in a request for production is insufficient to infer a waiver of
the psychiatristpatient privilege so as to allow the release of
records to former spouse);State V.Herendeen,279 Ga.323 (2005)
(identifying Georgias mental health privilege and discussing the
long-line of cases recognizing the important private interest and a
public interest in protecting psychotherapy
information);_s_e_e__als_g Powell v.State,270 Ga.327, 330 (1998)
(right of privacy guaranteed by the Georgia Constitution is far
more extensive than that protected by the Constitution of the
United States). Moreover,in both of its opinions dealing with
HIPAA,the Supreme Court of Georgia has found preemption and has
favored protection of patients privacy interests over Georgia laws
that would allow more expansive access to patients confidential
health information.E Allen v.Wright,282 Ga.9, 12 (2007) (statute
that required medical record release form to be led with
malpractice action was preempted by more stringent provisions of
HIPAA);Moreland v.Austin,284 Ga.730 (2008) (holding that ex parte
physician interviews are not allowed under HIPAA and contrary
Georgia law is preempted).In this case,however,the Courtof Appeals
has adopted a less stringent standard that would allow
virtually2560526v4 - 3
- 5. unfettered access by large groups of purportedz survivors to
the health information of decedents.The Supreme Court should
therefore grant certiorari to review the Court of Appeals
decision,to maintain the consistency of HIPAA interpretation in
this state,and to ensure that the privacy of condential health
information is protected as required under federal law. The main
issue in this case # whether a healthcare provider may disclose
health information to a surviving spouse,based solely on her status
as a surviving spouse,without violating federal law is an issue
which is of great importance to healthcare providers subject to
HIPAA and the I-IIPAA Regulations.This issue is likely to
recur.Moreover,the federal agency tasked with enforcing HIPAA has
determined that disclosure of medical records under the
circumstances presented in this case would constitute a violation
of HIPAA. Given the tension between federal law prohibiting
disclosure of health information and state law purporting to
require disclosure of health information,this is an issue which
should be considered by the Supreme Court in order to provide
proper guidance to healthcare providers and lower
courts.Moreover,theCourt of Appeals departure from long-standing
Supreme Court precedent2 In this case,the trial court entered an
order requiring Petitioners to disclose protected health
information ofthe decedent without any evidentiary hearing or any
notice to other family members.This procedure by which Ms.Miller
obtained the order requiring production of decedents medical
records provides no safeguards for protecting a decedents health
information from improper disclosure.If this procedure is allowed
to stand,one can easily envision a scenario where a total stranger
to a decedent could obtain protected health information by merely
alleging (without any evidence,notice,or opportunity to object
given to the decedents family) to be a survivor. 2560526v4 - 4
- 6. regarding the fundamental nature of a wrongful death claim
should not be permitted to stand without review by this Court.
Further,the Court of Appeals held that Petitioners were authorized
to produce the medical records under that part of the privacy rule
providing that a covered entity may disclose protected health
information in response to a court order entered in the course of
any judicial proceeding. (Ct.App.Dec.at 9 (citing 45 C. F.R.
l64.5l2(e)(l))).This holding appears to imply that so long as a
trial court orders disclosure (regardless of whether the order
would require the healthcare provider to violate HIPAA),the
healthcare provider may disclose protected health information in a
manner contrary to the strictures of HIPAA and seek protection
under cover of that order.As explained below,this holding is
contrary to HIPAA and has the practical effect of allowing trial
courts to overrule HIPAA by entering an order requiring disclosure
which is prohibited by HIPAA.Accordingly,the Supreme Court should
consider this matter to clarify the effect of a trial court order
on a healthcare providers HIPAA obligations. I.STATEMENT OF FACTS
AND PROCEDURAL BACKGROUND Ms.Miller alleges that her
husband,Stanton Miller (the Decedent),diedon March 19, 2006. (See
Complaint,l 27, copy attached as Ex.3.) Mr.Miller was a former
resident of Alvista Healthcare Center (Alvista),a nursing home
located in Greenville,Georgia.(E Q) Ms.Miller alleges that,as the
surviving spouse, she is entitled to bring an action for the
wrongful death of her husband pursuant to2560526v4 - S -
- 7. O. C.G. A. 5l42. (Comp.W 28 and 29.) In her capacity as the
surviving spouse,Ms.Miller requested copies of her husbands medical
records from Alvista.3 (See Comp.ll 30.) Ms.Miller made her request
on January 15, 2008, approximately twentytwo months after her
husbands death.(E Exhibit A to the Complaint. ) Although
recognizing that she was requesting the records as only a
survivor,Ms.Millers request purported to waive any
psychiatrist-patient and psychologist-patient privilege and any
privilege that exists with respect to records of contagious and
infectious disease including,but not limited to,HIV and AIDS,and
with respect to any drug and/ or alcohol abuse and treatment.
(Exhibit A to the Complaint. ) 4Alvista promptly responded to
Ms.Millers request on January 30, 2008, and advised her that the
request could not be fullled because Ms.Miller was not authorized
to act on behalf of her husbands estate.(E Exhibit B to the
Complaint. ) Alvista advised Ms.Miller that it is prohibited by
HIPAA from releasing the requested records to Ms.Miller until it
received verification that Ms.Miller is the authorized personal
representative of the Decedent.(e_e ii) No personal representative
of the Decedents estate has been appointed.(gee SuperiorCourt
Order,Findings of Fact,p.1, copy attached as Exhibit 4.) Rather
than3 Of the Petitioners,only Alvista maintains such records. Even
in the absence of HIPAA,any such mental health,HIV,and drug/
alcohol records may not be released to a survivor under Georgia
law._e O. C.G. A. 31-33-4; 24-947; 37-3-166 (a) (8.1);and 37-7-l66
(a) (9);see also 42 U. S.C. 290dd2 (protecting condentiality of
substance abuse records).Nevertheless,the Court of Appeals decision
and the trial courts order would require the disclosure of any such
information. 4256()526v4 ~ 6 -
- 8. proceeding with the administration of her husbands estate or
to seek other relief,however,Ms.Miller filed a Complaint for
Temporary Restraining Order and Permanent Injunction and
Declaratory Judgment.Without conducting an evidentiary
hearing,without Petitioners having answered the Complaint,and
without any notice to any other relative of the decedent,the
Superior Court granted every form of relief requested within just
ten days of the Complaint being filed.The Court of Appeals affirmed
the order of the Superior Court.The main issue before the Court of
Appeals was whether a healthcare provider may,consistent with its
obligations under the HIPAA Regulations,provide a decedents medical
records to a surviving spouse who is contemplating a wrongful death
action.Determination of this issue turns on whether a surviving
spouse pursues a wrongful death claim (i) on her own behalf or (ii)
on behalf of the decedent or his estate.In reaching its
decision,the Court of Appeals determined that a surviving spouse
pursues a wrongful death claim on behalf of the decedent.As
discussed below,this determination contradicts longstanding Supreme
Court precedent indicating that survivors bring the wrongful death
claim on the survivors ownbehalf,not on behalf of the deceased.
A.The HIPAA Regulations Impose Sweeping Privacy Protections. The
HIPAA Regulations impose upon covered entities, including
Petitioners,stringent privacy standards regarding protected health
information. Under HIPAA,protected health information may not be
disclosed by any covered2560526v4 ~ 7 ~
- 9. . entity to anyone except in compliance with the HIPAA
Regulations._S_ 45 C. F.R.l64.502(a) (A covered entity may not use
or disclose protected health information,except as permitted or
required by this subpart or by subpart C of part 160 of this
subchapter. ).Under HIPAA,privacy of protected health information
is the rule,and disclosure is the exception.Therefore,in order for
any covered entity to disclose protected health information to
anyone (including the individual whose protected health information
is at issue),such disclosure must be specically authorized by the
HIPAA Regulations. No provision in the HIPAA Regulations allows a
healthcare provider to disclose to a.surviving spouse based solely
on her capacity as a surviving spouse protected health information
of a deceased spouse.Rather,the surviving spouse must meet the
criteria set forth in the HIPAA Regulations with respect to the
protected health information of deceased individuals.E 45 C. F.R.
l64.502(f) (A covered entity must comply with the requirements of
this subpart with respect to the protected health information of a
deceased individualf). A covered entity generally is allowed to
disclose protected health information975to a personal
representative.However,for someone to be treated as a
personalrepresentative of a deceased individual,that person
must,among other5 A covered entity generally is allowed to treat a
personal representative as the individual with respect toprotected
health information.45 C. F.R. 164.502(g)(l).With certain limited
exceptions,a covered entity may disclose to an individual his own
protected health information without violating HIPAA.geg 45 C.
F.R,l64.524(a)(l).([A]n individual has a right of access to inspect
and obtain a copy of protected health information about the
individual in a designated record set,for as long as the protected
health information is maintained in the designated record set).
256()526v4 8 -
- 10. requirements,have authority to act on behalf of [the]
deceased individual or of the indiViduals estate. 45 C. F.R.
164.502(g)(4) (If under applicable law an executor,administrator,or
other person has authority to act on behalf of a deceased
individual or of the individuals estate,a covered entity must treat
such person as a personal representative under this subchapter,with
respect to protected health information relevant to such personal
representation).Therefore,the ability of a covered entity to
provide the protected health information of a deceased person to a
surviving spouse turns on this question:Does the surviving spouse
have authority to act on behalf of [the] deceased individual or of
the individuals estate?If that question cannot be answered
afrmatively,then the covered entity is prohibited fromdisclosing
the protected health information of a decedent to the surviving
spouse. B.A Surviving Spouse Under the Wrongful Death Statute Acts
On Her Own Behalf Not On Behalf Of The Decedent. In order to answer
the question whether a surviving spouse has authority to act on
behalf of [the] deceased individual or of the individuals estate,
it is necessary to consider the wrongful death statute and whether
a surviving spouse is act[ing] on behalf of [the] deceased
individual or of the individuals estate in pursuing a wrongful
death claim.The Georgia Supreme Court has already answered this
question in the negative.This Court has recognized that the
wrongful death statute is intended to compensate the survivor for
the survivors loss._S_e Williams v. Georgia Dept.of Human
Resources,272 Ga.624, 626 n.l (2000) (wrongful2560526v4 9
- 11. death claim is for injury sustained by survivor as a result
of the death,not for the injury suffered by the deceased),citing
Lovett V.Garvin,232 Ga.747, 748 (1974).It has long been established
that an action under Georgias wrongful death statute is brought on
behalf of the surviving spouse or next of kin ~ not on behalf of
the decedents estate.SQ O. C.G. A. 51-42; Patellis v.King,52
Ga.App.H8 (1935) (wrongful death action is on behalf of the next of
kin and not the estate);Williams v.Georgia Dept.of Human
Resources,272 Ga.624, 626 (2000) (wrongful death claim is for
injury sustained by survivor);Smith v.Memorial Medical Cntr.Inc,208
Ga.App.26, 27 (1993) (an individuals claim for wrongful death and
an estates claim for the decedents pain and suffering are distinct
causes of action;the plaintiff in his individual capacity and in
his capacity as administrator are legally different persons);Bryant
v.Browning,259 Ga.App.467, 468 n.2 (2003).Any recovery on a
wrongful death claim is paid directly to the statutory survivors
and does not pass through the decedents estate.Thus,in any wrongil
death action brought by a surviving spouse,the surviving spouse
would be acting on behalf of herself,not on behalf of the deceased
spouse or his estate. C.Procedural History1. The Order Of The
Superior Court.The Superior Court,in an order drafted entirely by
Ms.Miller,found that: 2560526v4 - 10
- 12. The purpose of Georgias Wrongful Death Act is
two-fold:rst,to impose a civil penalty as a deterrent upon a
defendant who causes a homicide;and secondly,to bestow such penalty
upon the statutory beneciary by way of compensation for the life
taken.Georgias remedy for wrongful death is unique.The measure of
damages under Georgia law for wrongful death is the value of the
decedents life to him.Thus,the Court finds that Plaintiff,as the
surviving spouse of Stanton Miller,has authority under Georgia law
to act on his behalf by investigating,and perhaps pursuing,the
potential wrongful death claim. (See Superior Court
Order,Conclusions of Law,p.3, emphasis added. )No notice was
provided to any interested parties (Q family members or
representatives of the estate) prior to the order requiring
disclosure of Decedents medical records.There was no evidentiary
hearing and no opportunity for interested parties to object to the
disclosure of decedents health information.The Superior Court did
not cite any authority for its determination that the purpose of
Georgias wrongful death statute is to penalize a defendant,but it
did correctly recognize that the recovery is for the benefit of the
statutory beneciary and not the decedents estate.(lg) Although the
Superior Court correctly recognized that a Wrongful death action is
for the benefit of the survivor,it erred when it went on to hold
that such an action is on behalf of the decedent.The Superior
Courts holding resulted from its focus on the measure of
damages,rather than on the beneciary of the damages.As the damages
in a wrongful death action are paiddirectly to the statutory
survivors and do not pass through the decedents estate,the2560S26v4
- ll
- 13. wrongful death action cannot be said to be pursued on
behalf of the decedent orhis estate,regardless of how the damages
are calculated. 2. The Court of Appeals Decision. In determining
that HIPAA allows disclosure of a decedents protected health
information to his surviving spouse,the Court of Appeals
acknowledged that OCGA 5l42(a) .. .provides for a right of action
for the wrongful death of a spouse to reside in the surviving
spouse,and,if no surviving spouse,in the child or children.
(Ct.App.Dec.at 7, quoting Carringer v.Rodgers,276 Ga.359, 365, 578
S. E.2d 841 (2003). ) Despite this recognition that the right of
action for wrongful death reside[s] in the surviving spouse, the
Court of Appeals focused on the measure of damages,rather than on
whose behalf those damages are sought,in concluding that a survivor
pursues a wrongful death claim on behalf of the decedent. In
response to the decision of this Court in Williams v.Georgia
Dept.of Human Resources,272 Ga.624, 626 n. l4 (2000) (citing Lovett
v.Garvin,232 Ga.747, 748 (1974)),that wrongful death claim is for
injury sustained by survivor as a result of the death,not for the
injury suffered by the deceased, the Court ofAppeals stated in a
footnote: Williams v.Georgia Dept.of Human Resources,272 Ga.624,
626 (n. l4) (532 S. E.2d 401) (2000) cited Lovett v.Garvin,232
Ga.747(208 S. E.2d 838) (l974) as authority for the rule that a
claim for wrongful death accrues when the decedent dies rather than
at the time of iniction of the injuries causing the death.As
recognized in2560526v4 - l2
- 14. Williams,Lovett gave as the reason for the rule that the
gist of the action is the injury suffered by the beneciaries rather
than the injury suffered by the deceased.A more fundamental reason
for the rule,however,is that an action accrues when suit can first
be brought,and it is axiomatic that a wrongful death action cannot
be brought until death occurs.We,therefore,interpret the rationale
expressed in Lovett and Williams to be unbinding dicta.
(Ct.App.Dec.at 8, n. l5, emphasis added. ) Having thus dismissed
Supreme Court precedent to the contrary as dicta,the Court of
Appeals concluded that a survivor who wishes to pursue an action
for the decedents wrongful death .. .has authority to act on behalf
of the deceased individual. (Q at 9.)As explained below,in so
holding,the Court of Appeals erred in several ways,including by
dismissing Supreme Court precedent and concluding that a surviving
spouse pursues a Wrongful death claim on behalf of the deceased
individual simply because the damages are measured based on the
value of the decedents life to him,even though those damages do not
go to the decedent or pass through his estate but go directly to
the surviving spouse.In so holding,the Court of Appeals diminished
the privacy protections afforded by HIPAA. II.ENUMERATIONS OF
ERRORl.The Court of Appeals decision improperly determined that
HIPAA and the HIPAA Regulations do not prohibit disclosure of
Decedents medical records to Ms.Miller. a.The Court of Appeals
decision improperly concluded that asurviving spouse pursues a
wrongful death claim on behalf or2560526v4 - 13 -
- 15. the decedent rather than on her own behalf,making such
surviving spouse a personal representative of the decedent for
purposes of HIPAA and the HIPAA Regulations. b.The Court of Appeals
decision improperly concluded that {t]here is no merit in Alvistas
challenge to the trial courts authority to compel Alvista to
produce the medical records under that part of the privacy rule
providing that a covered entity may disclose protected health
information in response to a court order entered in the course of
any judicial proceeding. 2. The Court of Appeals decision
improperly concluded that the trial court was authorized to find
that ling a complaint with the OCRdid not provide'Mil1er with an
adequate legal remedy due to the impending expiration of the
wrongful death statute of limitation. 3. The Court of Appeals
decision improperly failed to address Petitioners argument that the
Superior Court erred in granting a mandatory injunction. 4. The
Court of Appeals decision improperly concluded that this is
anappropriate case for a declaratory judgment. 2560526v4 - l4
-
- 16. III.THIS CASE PRESENTS ISSUES OF GREAT PUBLIC INTERESTThis
Court has addressed many times the sorts of issues that pose great
public interest under Article VI,Section 6, paragraph V of the
Constitution.l. n its earliest cases addressing the topic,the Court
granted certiorari in certain cases of first impression,se, g_. ,
Central of Georgia Ry.Co.v.Yesbik,146 Ga.769, 92 S. E.2d 527
(1917);to resolve conicting lower court decisions,s_e, _e, g_. ,
Frazier v.Southern Ry.Co. , 200 Ga.590, 37 S. E.2d 74 (l946);and,on
essentially an ad hoc basis,where the question was deemed so
fundamental and important that it required this Courts review,_s_e;
e,_e_: ,g_. ,King v.State,155 Ga.707, ll8 SE.368 (1923).Moreover,in
a frequently quoted opinion,Justice Hall noted in a dissent in
Atlanta CocaCola Bottling Co.v.Jones,236 Ga.448, 224 S. E.2d 25
(1976) that [d]iscretionary review in the highest court should be
basically for the benet of the public,to reconcile different
holdings of the [Court of Appeals] and to declare the law on
matters of gravity and public policy. This case is exactly the sort
that should be reviewed by this Court.As noted above,this case
involves the tension between federal law forbidding disclosure of
health information and an order of a superior court purporting to
require disclosure of health information.Caught in the middle are
healthcare providers who,on the one hand,face stiff federal
penalties if they comply with a court order and,on the other
hand,risk contempt sanctions if they comply with HIPAA.This case
presents an opportunity for this Court to provide clear guidance to
lower courts, 2560526v4 l5 -
- 17. litigants,and healthcare providers across the state so that
future disputes on this issue may be avoided. Additionally,review
is necessary because the Court of Appeals decision represents a
substantial departure from this Courts long~standing precedent
regarding the fundamental nature of a wrongful death claim.The
ability of a healthcare provider to disclose health information to
a person purporting to be a personal representative of the
individual whose health information is at issue depends in part on
whether the purported personal representative has authority to act
on behalf of the individual.The trial court made this determination
without any notice to interested parties (i. e. family members or
the representatives of the estate) and without an evidentiary
hearing.In affirming the order of the trial court,the Court of
Appeals decision determined that a wrongful death claimant pursues
the wrongful death claim on behalf of the deceased spouse,rather
than on her own behalf.This determination is contrary to the clear
language of the wrongful death statute and longstanding
precedent.Such a drastic change to the fundamental nature of a
wrongful death action could have far-reaching consequences well
beyond the limited issue of allowing a surviving spouse to obtain
medical records.These consequences should be considered by this
Court before effecting such adrastic change to wrongful death law.
2560S26v4 - l6 -
- 18. Thus,this Court should grant Petitioners Petition for
Certiorari to clarify the proper protection afforded to protected
health information sought by a surviving spouse acting solely in
her capacity as such.Clearly,this is an issue of grave importance
for potential wrongful death claimants,healthcare providers,lower
courts,and any other individuals with an interest in ensuring that
health information is disclosed in accordance with federal law
designed to protect the privacy of the individual whose health
information is at issue.Moreover,the determination of Whether a
surviving spouse pursues a wrongful death claim on her own behalf
or on behalf of the decedent or his estate is a determination which
may have unintended consequences,and the potential consequences of
such a substantial change to the interpretation of the wrongful
death statute should be considered by this Court. IV.ARGUMENT AND
CITATION OF AUTHORITYA.The Court of Appeals Improperly Determined
that HIPAA andthe HIPAA Regulations Do Not Prohibit Disclosure of
Decedents Medical Records1. The Court of Appeals erred in
concluding that a wrongful death claimant pursues the wrongful
death action on behalf of the decedent or his estate,rather than on
her own behalf. The Court of Appeals decision correctly recognized
that HIPAA controls this dispute and the ability of Petitioners to
provide Decedents medical records to Ms.Miller without violating
HIPAA turned on whether Ms.Miller was authorizedto act on behalf of
the Decedent.The Court of Appeals erred,however,in2560526v4 -
l7
- 19. determining that Ms.Miller was acting on behalf of Decedent
in seeking records relating to a potential wrongful death claim.6
This determination represents a swift departure from long~standing
jurisprudence regarding the fundamental nature of a wrongil death
claim. A spouse,such as Ms.Miller,is not authorized,based solely on
that relationship,to act on behalf of or to bind her husband
legally either when he is alive or when he has passed.Marriage
alone does not establish an agency orrepresentational relationship
between spouses. Ashbum Health Care Center Inc.V.Poole,286
Ga.App.24, 27, 648 S. E.2d 430, 432 (2007);Brown v.Little,227
Ga.App.484, 487(2),489 S. E.2d 596 (1997) (physical precedent
only).7 Even to the extent an agency relationship exists during
life,however,it is well established that the death of a principal
terminates the agency.Sge O. C.G. A. 10- 6-33; RBSTATEMENT,LAW or
AGENCY 3d, 3.07; RESTATEMENT,LAW or AGENCY 2d, 121; Cutcliffe
v.Chesnut,126 Ga.App.378, 382, 190 S. E.-2d 800, 803 (1972) (death
of the principal terminates the agency unless the agents power is
coupled with an interest);Anderson v.Goodwin,125 Ga.663(3),54
SE.679(1906).Thus,the spousal relationship does not give rise to
agency relationship. 6 The Court of Appeals decision states that
Ms.Miller brought a wrongful death action.(Ct.App.Dec.at 1).This is
incorrect.Ms.Miller did not file a wrongful death action but was
merely contemplating such an action.She led a Complaint seeking
injunctive relief and a declaratory judgment regarding Decedent's
medical records but was merely contemplating such an action.(E
Complaint. )7 Although Brown is physical precedent only (s_e Court
of Appeals Rule 33(a)),it has been cited with approval and without
qualication in other cases that serve as binding precedent.See,e.
g.,Whiten v.Murray,267 Ga.A .417, 599 S. E.2d 346 2004);Drake
v.Wallace,259 Ga.App.111,576 S. E.2d 87 (2003). PP256052(>v4 -
18 ~
- 20. Moreover,even assuming that Ms.Miller were able to
establish that an agency.relationship existed between she and her
husband during life,any such relationshipterminated upon her
husbands death.For sound policy reasons,the law requires express
legal delegation of authority even among spouses.Without such
delegation,spouses generally cannot bind one another. In the same
way that a formal delegation of authority is needed in order to
appoint a surrogate to act on behalf of a principal during life,the
law requires that formal probate processes be followed before
granting legal authority to act on behalf of a decedents
estate.Ensuring that spouses and family members are who they
say,providing notice to family members and heirs,and inquiring as
to the ability of the proposed personal representative to fulll his
or her duties are functions entrusted to the probate courts.See O.
C.G. A. l59l20 (granting the probate court exclusive
jurisdiction,among other things,over the probating of wills and
sale and distribution of assets of an estate).These probate
functions have a low administrative burden for survivors and
heirs,but they serve an important societal function.In many
circumstances,a survivor may not be the appropriateperson to act on
behalf of a decedent or his estate,such as when there is a
pending2560526v4 - 19
- 21. divorce,murder,estrangement,incompetence,or other issue
that would militate against that person having access to personal
information about the decedent.8 Rather than obtain the proper
authority through the probate court to obtain Decedents medical
records,Ms.Miller relies solely on her status as a surviving spouse
contemplating a wrongful death action as the basis for the
requisite authority to act on behalf of Decedent required under
HIPAA to allow Petitioners to disclose Decedents protected health
information.The phrase on behalf ofmeans as the agent of,on the
part of. (Dictionarycom.The AmericanHeritage(Rj Dictiong of the
English Language,Fourth Edition.Houghton MifinCompany,2004. http:
//dictionary. referencecom/ browse/ on behalf of (accessed: March
04, 2009)).On behalf of may also mean for the benefit of. (l_d_. )
The wrongful death statute and numerous cases interpreting it make
clear that a wrongful death claimant does not act as the agent of
on the part of or for the benefit of the decedent or his estate in
pursuing a wrongful death claim.Rather,such survivors pursue a
wrongful death claim in their individual capacities and on their
own behalf. Pursuant to O. C.G. A. 5l-4-2 (a),Georgias wrongful
death statute,the surviving spouse or,if there is no surviving
spouse,a child or children,mayrecover for the homicide of the
spouse or parent the full value of the life of the8By way of
example,the Ms.Mi1lers request for records in this case sought all
psychiatric,contagious and infectious disease,HIV,AIDS,and drug
and/ or alcohol abuse and treatment records.(gag Exhibit A to the
Complaint. )2560526v4 - 20 -
- 22. decedent.If,as Ms.Miller asserts,the wrongful death action
were on behalf of the decedent, then any recovery would be for the
benefit or his estate and would be subject to claims by creditors
of the estate.Instead,[a]ny amount recoveredshall be equally
divided,share and share alike,between the surviving spouse and the
children per capita,and the descendants of children shall take per
stirpes. O. C.G. A. 51-4-2 (d) (1).Thus,any recovery does not go
into or become part of the decedents estate;instead,it vests in the
survivors as specified in the wrongful death statute.9 Subsection
(e) of the statute provides that:No recovery had under subsection
(a) of this Code section shall be subject to any debt or liability
of the decedent. O. C.G. A. 51-4-2 (e).As the recovery under a
Wrongful death action does not ow into or through the decedents
estate,the pursuit of such action is not on the behalf of (i.
e.,for the benefit of) the decedent or his estate. Moreover,a
survivor does not pursue a wrongful death action on behalf of the
decedent or his estate in the sense of acting as the agent of [or]
on the part of the decedent or his estate.If such were the case,the
survivors pursuing the wrongful death action would be ~ as any
other agent accountable to their principal (i. e.,the
estate).Thus,the estate would be entitled to control the survivors
handling of the litigation,the settlement of any litigation,and the
use ofany proceeds of the litigation.However,wrongful death
claimants have never9 The wrongful death action is a creature of
statute for no such right existed at common law.gag
Edeneldv.Jackson,251 Ga.491, 492(1),306 S. E.2d 91! (E983).Being in
derogation of common law,the statute must be limited strictly to
the meaning of the language employed and not extended beyond its
plain and explicit terms.{cn. ] Lovett v.Garvin,232 Ga.747, 748,
208 S. E.2d 838 (1974). 2560526v4 - 21
- 23. been subject to any such direction or control from the
estate because the do not act on behalf of the decedent or his
estate. It appears that the wrongful death action has been conated
with the survival of a decedents cause of action.A pure survival of
a cause of action had by the decedent would,as any other
right,reside in his executor,administrator or heirs,with the right
of the administrator,executor,or heirs to sue instead of the
deceased had he lived._S_6_6 Thompson v.Watson,l86 Ga.396, 400, 197
SE.774, 776 (1938),overruled on other grounds,Walden v.Coleman,217
Ga.599, 605, 124 S. E.2d 265 (1962).A survival action is pursued on
behalf of the estate.On the other hand,[a] wrongful death action
has none of the attributes of a mere survival of the cause of
action had by the deceased,but has only those of a new and distinct
right or cause of action,based merely upon the same tort which gave
cause to the right of action in the deceased. E,at 405. Unlike a
survival action,which belongs to the estate,the wrongful death
action belongs to the survivors.Indeed,as the Georgia Supreme Court
has recognized,the statute is intended to compensate the survivor
for the survivor '5 loss.Se;Williams v.Georgia Dept.of Human
Resources,272 Ga.624, 626 n.14 (2000) (wrongful death claim is for
injury sustained by survivor as a result of the death,not for the
injury suffered by the deceased),citing Lovett v.Garvin,232 Ga.747,
748 (1974).It has long beenestablished that an action under
Georgias wrongful death statute is brought on2560526/4 I - 22
-
- 24. behalf of the decedents surviving spouse or next of kin m
not on behalf of the decedents estate.p_e_ O. C.G. A. 51-4-2;
Patellis v.King,52 Ga.App.118 (1935) (wrongful death action is on
behalf of the next of kin and not the estate); Williams v.Georgia
Dept.of Human Resources,272 Ga.624, 626 (2000)(wrongful death claim
is for injury sustained by survivor);Smith V.Memorial Medical
Cntr.1nc. , 208 Ga.App.26, 27 (1.993) (an individuals claim for
wrongful death and an estates claim for the decedents pain and
suffering are distinct causes of action;the plaintiff in his
individual capacity and in his capacity as administrator are
legally different persons);Biyant v.Browning,259 Ga.App.467, 468
n.2 (2003). In response to the clear statutory language and
precedent indicating that a wrongful death action is pursued on
behalf of the survivors and not on behalf of the decedent,Ms.Miller
relies on case law regarding the measure of damages in a wrongful
death claim.Ms.Miller,the trial court,and the Court of Appeals have
confused the issue of how damages are measured with the separate
issue of whether a survivor acts on behalf of her decedent.The
Court of Appeals decision does not address the issue whether the
recovery ows into or through the estate or who directs the wrongful
death litigation.Instead,the Court of Appeals decision notes that
damages are measured from the decedents point of view .. ..
[T]hemeasure of the recovery is the full value of the life of the
deceased,irrespective of256()526v4 - 23 -
- 25. its value to the person in whom the cause of action is
vested. (Ct.App.Dec.at 7- 8.) Preterrnitting whether this is an
accurate assessment of the appropriate measure of damages,this
analysis has nothing to do with whether a wrongful death claim is
pursu. ed on behalf of the decedent or his estate.Regardless of
what the measure of damages is,the fact remains that such damages
are for the benet of the survivors and do not in any manner ow into
or through the estate.The measure of damages,likewise,does not make
a survivor the agent of or otherwise affect who controls the
wrongful death litigation.For these reasons,regardless of how
damages are calculated,the measure of damages does not alter who is
authorized (or in what capacity they are authorized) to bring a
wrongful death claim.Wrongful death actions must be asserted by the
survivors in their individual capacity,and only the survivors are
entitled to the recovery.Heirs and creditors of the estate may not
stake a claim to the recovery.As such,the wrongful death claim is
not asserted on behalf of the decedent,and a survivor is therefore
barred by HIPAA from recovering a decedents records.S_ee 45 C. F.R.
l64.502 (g) (4).In light of the strong federal initiative under
HIPAA to protect the health information of individuals,both living
and dead,the authority for someone to act on behalf of a decedent
should be clear and unambiguous.In this case,the Georgia
statuteirelied upon by Ms.Miller,O. C.G. A. 31-33-2 (a) (2),does
notpurport to expand traditional agency relationships between
spouses or to grant one2560526v4 24
- 26. spouse the authority to act on behalf of the other.Because
it does not empower aspouse to act on behalf of his or her deceased
spouse,the statute is preempted under HIPAA and cannot serve to
compel the production of records in this case. 5 2. The Court of
Appeals erred in concluding that the trial courts order authorizes
Petitioner to disclose Decedents records. In affirming the Superior
Courts order,the Court of Appeals held as follows: There is no
merit in Alvistas challenge to the trial courts authority tocompel
Alvista to produce the medical records under that part of
theprivacy rule providing that a covered entity may disclose the
protected health information in response to a court order entered
in the course of any judicial proceeding.[fn. l6: 45 C. F.R.
l64.5l2(e)(1);see Ussery v.Childrens Healthcare of Atlanta,289
Ga.App.255, 269- a 270 (4) (656 SE2d 882) (2008);Austin
v.Moreland,supra] Here,the trial courts order complies with HIPAA
requirements for the disclosure of such records. [ml 7:
Ussery,supra at 270 (4). ](Ct.App.Dec.at 9-10)This determination
appears to imply that an order of a trial court even one in
violation of HIPAA suffices under HIPAA to allow a healthcare
provider to disclose protected health information of an individual
who is not even a party to the proceeding in which the order is
issued and even when the healthcare provider knows that the
required disclosure would violate the individuals privacy rights
under HIPAA.As the trial courts order would require Petitioners to
knowingly violate HIPAA,HIPAA does not condone disclosure of a
nonpartys protectedhealth information.To the extent that the Court
of Appeals decision could place2S60526v4 25 -
- 27. trial courts under a misconception that their orders may
serve as a substitute for compliance with HIPAA,this Court should
clarify that this is not the case and a trial court order should
not be used as a shortcut to circumvent HIPAA. With respect to
disclosures in judicial proceedings,the HIPAA Regulations provide
that [a] covered entity may disclose protected health information
in the course of any judicial or administrative proceeding:(i) [i]n
response to an order of a court or administrative tribunal,provided
that the covered entity discloses only the protected health
information expressly authorized by such order. 45 CFR.
l64.5l2(e)(l).The Court of Appeals appears to interpret this
provision as allowing a covered entity to disclose protected health
information based on a court order,even if (i) the individual whose
health information is at issue is not a party to the proceedings
and has received no notice and opportunity to respond;(ii) the
order provides no protection or qualification regarding the use of
this health information;(iii) the order is in a dispute,the sole
issue of which is the protections afforded to medical records by
HIPAA.Such an interpretation does not adequately protect an
individuals right to privacy,as it would permit the disclosure of
an individuals health information with no notice or opportunity to
respond given to the individual.Moreover,this interpretation gives
too much power to trial courts whose decisions on HIPAA issues
cannot be challenged because the courts order, even if based on an
erroneous interpretation of HIPAA,becomes the basis for
the256()526v4 - 26 -
- 28. disclosure under HIPAA.Considering that HIPAA expressly
preempts State law less protective of health information,it cannot
stand that HIPAA would allow a healthcare provider to disclose
health information based on an order founded on an erroneous
interpretation of HIPAA. 3. The Court of Appeals decision
improperly failed to addressPetitioners argument that the Superior
Court erred in granting a mandatory injunction. It is error for a
trial court to grant an injunction where,as here,an adequate remedy
at law exists.See Thomas v.Mayor of Savannah,209 Ga.866 (1953);City
of Duluth v.Riverbrooke Properties,Inc. , 233 Ga.App.46, 55 (1998)
(injunctions should be granted cautiously and only if there was no
adequate remedy at law).An injunction is distinctly an equitable
remedy.See Howard V.1Va_r_r_e_1_1_,206 Ga.838, 839 (1950).Where the
relief sought can be obtained in a manner provided by law,a suit in
equity will not lie._S_e_e O. C.G. A. 23-1-3; 23- 1-4; Housing
Auth.V.MMT Enterprises,267 Ga.129 (1996). HIPAA is enforced by
OCR.A person who believes that a health care provider has violated
HIPAA may file a complaint with OCR.gee http: //www. hhs. gov/ ocr/
privacyhowtole. htm.If,after investigation,OCR determines that a
violation of HIPAAhas occurred,OCR may order compliance and impose
civil money penalties in cases of uncorrected violations.See 45
CFR. 1. 60.304; 42 U. S.C. l320d5. These federal laws and
regulations provide Ms. Miller with an adequate remedy at
law.Ms.Miller may le a complaint with OCR2S60526v4 - 27 -
- 29. asserting that Petitioners have wrongfully denied her
access to the Decedents protected health information.If OCR
determines that Ms.Miller is an authorized personal representative
of the Decedent under HIPAA,and that Ms.Miller satises the HIPAA
Representation Rule,Ms.Miller would be afforded appropriate relief
to obtain access to the Decedents protected health information.
Further,rather than restraining or enjoining any actions of
Petitioners,the Superior Courts order grants a mandatory injunction
ordering Petitioners to perform the affirmative act of furnishing
the medical records to Ms.Miller.(Superior Courts order,p.4.) The
Superior Court granted this relief without a hearing and without
Petitioners having even answered the Complaint. A mandatory
injunction has been called the strong arm of equity. It is an
extraordinary and powerful remedy requiring greater caution and has
been described as dangerous in a doubtful case. Prime Bank
V.Galler,263 Ga.286, 289 (1993). Petitioners would be placed in
danger of acting in contravention of federal law if required to
release Decedents medical records to Ms.Miller in accordance with
the Superior Courts order.Whatever claims Ms.Miller herself may
have under Georgia law as the surviving spouse of the Decedent,she
has not demonstrated that she qualifies as the personal
representative of the Decedent or ofthe Decedents estate under the
HIPAA Representation Rule.Without such a2560526v4 - 28 -
- 30. showing of clear legal authority,there has been no showing
that a mandatory injunction is warranted in this case. The standard
of review for the foregoing question of law on appeal is de novo or
independent review.Because no deference is owed to the Superior
Courts ruling on a legal question,the plain legal error standard of
review is applied. Suarez v.Halbert,246 Ga.App.822, 824 (1) (2000).
4. The Court of Appeals decision improperly concluded that this is
an appropriate case for a declaratory judgment. A declaratory
judgment is not the proper action to decide all justiciable
controversies.See Porter v.Houghton,273 Ga.407,408 (2001).To
proceed under a declaratory judgment a party must establish that it
is necessary to relieve herself of the risk of taking some future
action that,without direction,would jeopardize her interests.See
id.The object of the declaratory judgment is to permit
determination of a controversy before obligations are repudiated or
rights are violated. [l]ts purpose is to permit one who is walking
in the dark to ascertain where he is and where he is going,to turn
on the light before he stepsrather than after he has stepped in a
hole. Loyd v.City of lrwinton,142 Ga.App. 626 (1977). Here,there
has been no showing that a declaratory judgment is necessary to
relieve Ms.Miller of the risk of taking some future undirected
action incident toher rights which might jeopardize her
interest.Indeed,by denying Ms.Millers2560526v4 - 29 -
- 31. request for records,Petitioners had already acted when
Ms.Miller filed her Complaint.The distinctive characteristic of a
declaratory judgment is that thedeclaration stands by itself and
does not seek execution or performance by thedefendant. Kirkland
v.Morris,233 Ga.597, 597 (1975);Gelfand v.Gelfand,281 Ga.40,
(2006).The only declaratory relief ordered by the Superior Court is
in the form of mandatory injunctive relief,compelling Petitioners
to release records immediately.It is not the function of
declaratory judgment to settle controversiesand make binding
declarations concerning mere directory provisions.See
CharlesH.Wesley Educ.Foundation,Inc.v.State Election Bd. , 282
Ga.707, 711 (2007). The standard of review for the foregoing
question of law on appeal is de novo or independent review.Because
no deference is owed to the Superior Courtsruling on a legal
question,the plain legal error standard of review is applied.
Suarez v.Halbert,246 Ga.App.822, 824 (1) (2000). V.CONCLUSIONFor
the reasons set forth above,Petitioners respectfully request that
this Court grant their Petition for Writ of Certiorari to review
the Decision of the Courtof Appeals. [signatures on following
page]2560526v4 - 30 -
- 32. Respectfully submitted this 9th day of March,2009.ALL GO EN
GREGORY LLPenn P.Hen X Georgia Bar No.346590 Jason B.BringGeorgia
Bar No.082498 Robert T.Strang,III Georgia Bar No.675101 W.Jerad
Rissler Georgia Bar No.142024171 17 Street NWSuite
2100Atlanta,Georgia 30363-1031(404) 873-8500(404) 873-8501
Attorneys for Petitioners2560526v4 3l ~