Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-418 and former O.C.G.A. § 24-9-40 are included in the annotations for this Code section.

Federal law preempts state law.

- Regulations enacted under 42 U.S.C. § 1320d-2(d)(2)(A) of the Health Insurance Portability and Accountability Act (HIPAA) preempted former O.C.G.A. § 24-9-40(a) with regard to ex parte communications between defense counsel and a plaintiff's prior treating physicians because HIPAA afforded patients more control over their medical records than former § 24-9-40(a) when it came to informal contacts between litigants and physicians. Moreland v. Austin, 284 Ga. 730, 670 S.E.2d 68 (2008) (decided under former O.C.G.A. § 24-9-40).

Fact of employment is not within the physician-patient privilege. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969) (decided under former Code 1933, § 38-418).

Employee and company-appointed physician.

- No physician-patient relationship existed between an employee and a company-appointed physician retained to give the employee a return to work physical. Payne v. Sherrer, 217 Ga. App. 761, 458 S.E.2d 916 (1995) (decided under former O.C.G.A. § 24-9-40).

Ex parte communications not required.

- Denial of the defendants' motion for a qualified protection order in a medical malpractice and wrongful death action was not erroneous because the defendants failed to support the defendants' assertions that ex parte interviews were necessary to obtain affidavits or medical narratives from the healthcare providers or to protect the providers' work product or why the providers needed to meet with the provider ex parte to "prepare" the providers for trial testimony, as the providers were not parties, were not the defendants' expert witnesses, were not agents or employees of the defendants, were in a confidential patient-physician relationship with the decedent, and had an ongoing fiduciary duty to the decedent to protect that confidential information. Tender Loving Health Care Servs. of Ga., LLC v. Ehrlich, 318 Ga. App. 560, 734 S.E.2d 276 (2012) (decided under former O.C.G.A. § 24-9-40).

Employment agreement regarding confidential medical issues.

- Medical director's agreement to abide by policies of contract employer in order to obtain patient privileges at its hospital constituted a waiver under former O.C.G.A. § 24-9-40 of an action for the contract employer's alleged failure to keep the medical director's test result records showing the medical director had tested positive for an infectious disease confidential as the agreement permitted authorized hospital representatives and staff to provide and act upon information bearing on the medical director's professional ability and qualifications, and the medical director agreed to waive all legal claims related to such disclosure. Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 571 S.E.2d 557 (2002) (decided under former O.C.G.A. § 24-9-40).

Applicability of physician shield law to physicians generally and to psychiatrists.

- Former O.C.G.A. § 24-9-40 read with former O.C.G.A. § 24-9-21(5) (see now O.C.G.A. § 24-5-501) reflected that the physician shield law applied to physicians generally but required physicians to release information upon proper order, whereas the confidentiality of communications to psychiatrists is protected by public policy and such communications were expressly excepted from the shield statute. Gilmore v. State, 175 Ga. App. 376, 333 S.E.2d 210 (1985) (decided under former O.C.G.A. § 24-9-40).

Protective order under HIPAA.

- Trial court did not err in granting a hospital's motion for a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to conduct ex parte interviews with a patient's health care providers because the hospital complied with 45 C.F.R. § 164.512(e)(1)(ii)(B), and any ex parte interviews conducted pursuant to the qualified protective order would be permitted under the HIPAA; because the order prohibited the use or disclosure of the patient's health information for purposes other than the litigation and required the return or destruction thereof at the conclusion of proceedings, it constituted a qualified protective order as defined in § 164.512(e)(1)(v). Baker v. Wellstar Health Sys., 288 Ga. 336, 703 S.E.2d 601 (2010) (decided under former O.C.G.A. § 24-9-40).

In issuing orders authorizing ex parte interviews, trial courts should have stated with particularity: (1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical condition(s) at issue in the litigation regarding which the health care provider(s) may be interviewed; (3) the fact that the interview was at the request of the defendant, not the patient-plaintiff, and is for the purpose of assisting defense counsel in the litigation; and (4) the fact that the health care provider's participation in the interview was voluntary; in addition, when issuing or modifying such orders, trial courts should have considered whether the circumstances, including any evidence indicating that ex parte interviews have or were expected to stray beyond their proper bounds, warranted requiring defense counsel to provide the patient-plaintiff with prior notice of, and the opportunity to appear at, scheduled interviews or, alternatively, required the transcription of the interview by a court reporter at the patient-plaintiff's request because the use of carefully crafted orders specifying precise parameters within which ex parte interviews may have been conducted would have served to enforce the privacy protections afforded under state law and advance the purposes of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) while at the same time preserved a mode of informal discovery that may have been helpful in streamlining litigation in Georgia. Baker v. Wellstar Health Sys., 288 Ga. 336, 703 S.E.2d 601 (2010) (decided under former O.C.G.A. § 24-9-40).

Transmittal of records to health care professional performing subsequent treatment.

- Psychologist who performed the neuropsychological testing and evaluation did not violate the patient's policy rights either by transmitting the records in question to the health care professional who took over the patient's treatment or by discussing the case with that professional. Jarallah v. Schwartz, 202 Ga. App. 32, 413 S.E.2d 210 (1991), cert. denied, 202 Ga. App. 906, 413 S.E.2d 210 (1992) (decided under former O.C.G.A. § 24-9-40).

Subpoena of personal medical records.

- In the absence of waiver and without notice to the accused or an opportunity to object, it was not "appropriate" under former O.C.G.A. § 24-9-40 for the state in a criminal case to subpoena a defendant's own personal medical records which were then in the possession of a physician, hospital, or health care facility. King v. State, 272 Ga. 788, 535 S.E.2d 492 (2000) (decided under former O.C.G.A. § 24-9-40).

Unlike the Fourth Amendment, which required that the state have probable cause prior to the seizure of an accused or an accused's property, former O.C.G.A. § 24-9-40(a) did not contain any express limits on the use of a subpoena to obtain a defendant's medical records for possible introduction as evidence in a criminal proceeding; therefore, defendant was not entitled to notice of a search warrant and an opportunity to object prior to the state's receipt of defendant's private medical records. King v. State, 276 Ga. 126, 577 S.E.2d 764 (2003) (decided under former O.C.G.A. § 24-9-40).

Health information contained in the defendant's hospital records was subject to disclosure under former O.C.G.A. § 24-9-40(a) after the district attorney's office obtained a search warrant, which was narrowly drafted to seek only the records related to the defendant's treatment on the night of a crime. Bowling v. State, 289 Ga. 881, 717 S.E.2d 190 (2011) (decided under former O.C.G.A. § 24-9-40).

Psychiatrist-patient communications absolutely privileged.

- Legislature has clearly expressed legislature's intent that, as a matter of public policy, psychiatrist-patient communications were to be privileged and were to remain privileged even though the patient's "care and treatment or the nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding," such that communications between a deceased patient and the psychiatrist did not lose their privileged character and were not discoverable merely because they were the most objective evidence of the relevant issue of the decedent's mental state. Dynin v. Hall, 207 Ga. App. 337, 428 S.E.2d 89 (1993) (decided under former O.C.G.A. § 24-9-40).

Criminal defense attorney who subpoened records from a psychiatric hospital was entitled to rely on the presumption that the records the attorney received from the hospital were either non-privileged or that the hospital first obtained a waiver from the patient. Karpowicz v. Hyles, 247 Ga. App. 292, 543 S.E.2d 51 (2000) (decided under former O.C.G.A. § 24-9-40).

Defendant placed mental state in issue.

- Trial court did not err when the court denied a motion in limine and allowed a psychiatrist who examined the defendant in jail to testify because the defendant placed the defendant's mental capacity in issue when the defendant filed a notice of intent to pursue a defense of not guilty by reason of insanity, which constituted a waiver of any state constitutional right of privacy or statutory privilege in the defendant's mental health records. Armstead v. State, 293 Ga. 243, 744 S.E.2d 774 (2013)(decided under former O.C.G.A. § 24-9-40).

Dentist was not immune from liability under former O.C.G.A. § 24-9-40; however, if the defendant complied in good faith with a production request, or if the defendant had been compelled to comply by a court, the defendant was shielded from liability for the disclosure under former O.C.G.A. § 24-9-44 (see now O.C.G.A. § 24-12-13). McFarlin v. Taylor, 187 Ga. App. 54, 369 S.E.2d 330 (1988) (decided under former O.C.G.A. § 24-9-40).

Trial court did not err in admitting testimony of a family practice physician from whom the defendant sought psychiatric referral two days after an alleged rape and who also consulted with the victim and attempted an examination of her pelvic area. Barnes v. State, 171 Ga. App. 478, 320 S.E.2d 597 (1984) (decided under former O.C.G.A. § 24-9-40).

Past recollections within medical record inadmissible.

- If the original of the medical record itself was admissible but diagnostic opinions and conclusions therein were inadmissible, past recollection recorded by a doctor of a patient's medical history contained in a medical record, which included a diagnostic opinion of another doctor, would have been inadmissible. Stoneridge Properties, Inc. v. Kuper, 178 Ga. App. 409, 343 S.E.2d 424 (1986) (decided under former O.C.G.A. § 24-9-40).

Filing of action as waiver.

- Once plaintiff filed action questioning the nature and quality of medical treatment rendered to plaintiff's child, the plaintiff waived the child's qualified right to privacy implicit in the Hippocratic oath, and doctor having source of information pertaining to that action was authorized to release information pertaining thereto and was immune from liability to the patient or any other person for release of that information. Orr v. Sievert, 162 Ga. App. 677, 292 S.E.2d 548 (1982) (decided under former O.C.G.A. § 24-9-40).

Fact that plaintiff was seeking to recover damages for injuries of a mental and emotional nature would not constitute a waiver of the privilege to exclude testimony of a psychiatrist. Wilson v. Bonner, 166 Ga. App. 9, 303 S.E.2d 134 (1983) (decided under former O.C.G.A. § 24-9-40).

Communications to coordinate care.

- Trial court properly directed a verdict in favor of the defendant, a psychiatrist, with regard to the plaintiff's invasion of privacy complaint, which asserted that the defendant's letters to the other treating physicians of the plaintiff violated the plaintiff's right to privacy because the evidence established that the information in the three letters disclosed to the plaintiff's other treating physicians was disclosed in an attempt to coordinate care; the sharing of the information did not amount to a public disclosure and there was no evidence that the other treating physicians shared the information with anyone else. Haughton v. Canning, 287 Ga. App. 28, 650 S.E.2d 718 (2007), cert. denied, No. S07C1869, 2008 Ga. LEXIS 157 (Ga. 2008) (decided under former O.C.G.A. § 24-9-40).

Names and addresses of stop-smoking clinic patients not privileged information.

- When the trial court ordered the defendant stop smoking clinic to produce the names and addresses of all persons who received the clinic's stop smoking treatment, the trial court was authorized to order disclosure of any relevant, nonprivileged information, and as the information sought by plaintiffs was not privileged there was no reversible error in the trial court's decision. National Stop Smoking Clinic-Atlanta, Inc. v. Dean, 190 Ga. App. 289, 378 S.E.2d 901 (1989) (decided under former O.C.G.A. § 24-9-40).

Whether defendant had AIDS placed "at issue."

- Defendant, who was charged with aggravated assault with intent to murder after biting a police officer, placed "at issue" the issue of AIDS by defendant's conduct in committing an act which was inextricably linked to the question of defendant having AIDS. Scroggins v. State, 198 Ga. App. 29, 401 S.E.2d 13 (1990), cert. denied, 198 Ga. App. 898, 401 S.E.2d 13 (1991) (decided under former O.C.G.A. § 24-9-40).

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, § 416.

C.J.S.

- 98 C.J.S. (Rev), Witnesses, § 411 et seq.

ALR.

- Waiver by beneficiary or personal representative, in actions on insurance policy, of privilege of communications to physician, 15 A.L.R. 1544.

Evidence: privilege as to family matters or affairs incidentally learned by physician while professionally attending patient, 24 A.L.R. 1202.

Evidence: privilege as to facts learned on autopsy or post-mortem examination, 58 A.L.R. 1134.

Classes of persons within term "physician" in rule as to privileged communications, 68 A.L.R. 176.

Privilege in respect of testimony of physician or surgeon that he noticed odor of liquor on patient's breath or other indications of recent use of liquor, 79 A.L.R. 1131.

Presence of third person as affecting privileged character of communications between patient and physician, 96 A.L.R. 1419.

Voluntary disclosure at trial of one's physical condition at certain time as waiver of privilege as regards testimony by physician as to condition at earlier time, 98 A.L.R. 1284.

Physician-patient privilege as affected by contention that purpose was examination and not treatment, 107 A.L.R. 1495.

When testimony by patient deemed to waive physician-patient privilege, 114 A.L.R. 798.

Physician-patient, attorney-client, or priest-penitent privilege as applicable in nonjudicial proceeding or investigation, 133 A.L.R. 732.

Construction and effect of statute removing or modifying, in personal injury actions, patient's privilege against disclosure by physician, 25 A.L.R.2d 1429.

Evidence: privilege of communications by or to nurse or attendant, 47 A.L.R.2d 742.

Admissibility in civil action of electroencephalogram, electrocardiogram, or other record made by instrument used in medical test, or of report based upon such test, 66 A.L.R.2d 536.

Who may waive privilege of confidential communication to physician by person since deceased, 97 A.L.R.2d 393.

Physician-patient privilege: testimony as to communications or observations as to mental condition of patient treated for other condition, 100 A.L.R.2d 648.

Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244.

Applicability in criminal proceedings of privilege as to communications between physician and patient, 7 A.L.R.3d 1458.

Commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to discovery proceedings, 21 A.L.R.3d 912.

Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401.

Physician-patient privilege as applied to physicians testimony concerning wound required to be reported to public authority, 85 A.L.R.3d 1196.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.

Physician-patient privilege as extending to patient's medical or hospital records, 10 A.L.R.4th 552.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Physician's tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668.

State statutes or regulations expressly governing disclosure of fact that person has tested positive for human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS), 12 A.L.R.5th 149.

Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Discovery, in medical malpractice action, of names and medical records of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff, 66 A.L.R.5th 591.