1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 ~