HIPAA Does Not Require Physician Interview Transcript Production Because Transcripts Contain Protected Health Information When They Are Attorney Work Product

The decedent, a woman who suffered from cancer, was treated by the defendant health care provider.


The decedent’s husband sued the health care provider in his individual capacity and as executor of his wife’s estate. During discovery, the health care provider sought to depose the woman’s prior health care providers which were not parties to this case. The trial court issued a qualified protective order authorizing counsel for the health care provider to conduct ex parte interviews of the named nonparty health care providers for the limited purpose of questioning them about the development of, diagnosis of, and treatment of the cancerous condition which caused or contributed to the death of the woman or her smoking, as a condition from which she may have suffered, which caused or contributed to a diminishment of her life expectancy or the enjoyment of her life.


Although the trial court determined that the circumstances did not require the health care provider's counsel to provide the husband with prior notice of or an opportunity to appear at the interviews, it did require that the interviews be transcribed by a court reporter should the husband make a written request for transcription. The husband asked that the interviews be transcribed and subsequently sought their production. The health care provider objected to production of the transcripts, claiming they were not subject to discovery because they constituted protected work product. The husband filed a motion to compel, which the trial court granted without conducting an in-camera review in an order summarily rejecting the health care provider's work product claim. The Court of Appeals denied the health care provider's application for interlocutory appeal, and the Georgia Supreme Court granted a writ of certiorari to determine the propriety of the trial court's production order.


The Supreme Court of Georgia vacated the trial court’s judgment and remanded. The court held that HIPAA does not require the health care provider to produce the transcripts by virtue of containing protected health information. Parties to litigation or other judicial proceedings may conduct ex parte interviews of health care providers consistent with the requirements of HIPAA as long as they first obtain a valid authorization or court order or otherwise comply with HHS promulgated privacy rules which prohibit covered entities from disclosing protected health information except under certain specified circumstances. The court found that the health care provider satisfied the requirements of the HHS rules when it secured a qualified protective order that prohibited the parties from using protected health information for any unauthorized purpose and required the return or destruction of protected health information at the end of the litigation. The court held that HIPAA does not entitle an individual to access protected work product in the possession of a covered entity simply by virtue of the fact that it contains protected health information. One seeking production of such information must do so in accordance with applicable rules of discovery. The court concluded that HIPAA therefore does not require the production of the transcripts at issue.


The court held that if good cause is shown, a trial court is authorized to impose additional procedural safeguards for the protection of the parties, including a requirement that defense counsel provide notice of the interview to the plaintiff and an opportunity to attend the interview or that the interview be transcribed at the plaintiff's request. These potential safeguards were not intended as an exclusive list, and a trial court could, under appropriate circumstances and within its discretion, direct both transcription of the ex parte interview and production of the transcript. To properly do so, however, a court must determine that circumstances require the imposition of additional safeguards and clearly notify the parties of the procedures to be followed.


In the sentence preceding the trial court's directive that interviews be transcribed at the plaintiff's request, the protective order referenced the absence at that point of any circumstances requiring notice to or the presence of the husband at the interviews. Given the juxtaposition of these sentences and the court’s previous opinions about safeguards to be considered by trial courts when drafting protective orders, the court found it plausible that the transcription requirement was intended to provide a method for determining through in camera review whether the court's protective order had been violated.


Under Georgia law, documents and tangible things prepared in anticipation of litigation constitute highly protected work product discoverable only if the party moving to compel discovery demonstrates a substantial need for the materials and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. The trial court in this case summarily determined the witness interview transcripts were not statutorily protected work product and ordered their production. The Georgia Supreme Court concluded this ruling was erroneous.


Work product may be discovered under Georgia law if the party seeking production makes an affirmative showing that the party has a substantial need for the evidence and that it would cause an undue hardship to develop this evidence by other means. The court noted that the record indicated the trial court made no inquiry into the content of the transcripts and made no findings or conclusions with regard to the plaintiff's need or hardship. Because the trial court made no findings with regard to waiver or the second criteria for production of the transcripts and the trial court sits as the trier of fact in discovery disputes, the court remanded to the trial court. If the trial court determines that the husband has met his burden, it then must conduct an in-camera examination to determine whether any portion of the transcripts may be produced without disclosing the mental impressions, conclusions, opinions, or legal theories of defense counsel concerning the litigation.


See: Wellstar Health System, Inc. v. Jordan, 2013 WL 2150809 (Ga., May 20, 2013) (not designated for publication).


See also Medical Law Perspectives October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis