IN THE COURT OF APPEALS STATE OF GEORGIA

Case A17A1671 Filed 07/06/2017 Page 1 of 20 IN THE COURT OF APPEALS STATE OF GEORGIA CLAY WOERNER and DEBORAH, ) WOERNER, ) ) Appellants ) ) No. A17A1671 v. ) ) EMORY CHILDREN S CENTER, INC, ) and EMORY HEALTHCARE, INC. ) ) Appellees ) ) v. ) ) U.S. TIMBER HOLDING LLC f/k/a ) CCRP HOLDINGS, LLC, JAMES I. ) ALFRIEND, CONSULTING ) FORESTERS, LLC and ) LAWRENCE M. ANDREWS, JR. ) ) Appellees. ) Submitted by: Laura M. Shamp Georgia Bar No. 637560 shamp@ssjwlawcom Joshua F. Silk Georgia Bar No. 903916 silk@ssjwlaw.com Shamp Speed Jordan Woodward 1718 Peachtree Street, Suite 660 Atlanta, Georgia 30309 (404) 873-9400 Fax: (404) 260-4180 Attorneys for Appellants REPLY BRIEF OF APPELLANTS

Case A17A1671 Filed 07/06/2017 Page 2 of 20 INTRODUCTION The simple question presented to this Court by this case is whether a person waives, forever and for all purposes, his right to privacy in his medical records surrounding an illness or injury by filing a personal injury lawsuit regarding that injury. Appellees, hereinafter collectively Emory, are medical care providers, and assert that even though Jacob Woerner is not a party to the proceedings in the lower court, they may disclose his medical records to third parties and to the public for the sole purpose of furthering their pecuniary interests. If the lower court s order stands, Emory would be entitled to disclose, to any person, at any time, at any place, and for any purpose, Jacob Woerner s medical records. As is discussed in Appellants initial brief, and herein, the Constitution of the State of Georgia provides a robust right to privacy in medical records, and Emory s financial interest in pursuing a contribution claim does not and cannot outweigh Jacob Woerner s constitutional right to privacy in his medical records. Additionally, Emory should be estopped from disclosing the terms of the confidential settlement agreement they voluntarily entered into. And finally, this Court has jurisdiction to hear this appeal, as authority squarely on point confirms. In sum, this Court has jurisdiction, and the trial court s order should be reversed. 1

Case A17A1671 Filed 07/06/2017 Page 3 of 20 ARGUMENT AND CITATION OF AUTHORITY I. This Court Maintains Jurisdiction Over This Appeal On January 20, 2017, this Court entered an order vacating its prior order and reinstating the grant of interlocutory review, while asking the parties to brief the jurisdictional and procedural issues related to that order. See Order Granting Reinstatement (Appeal No. A17I0065; Ref. No. 208099). The procedural posture of this issue is important. This Court exercised its discretion to vacate its prior order granting interlocutory review and to reinstate the order with a new date. Appellants then timely filed a notice of appeal based on that order. [R-1]. The question, then, is whether this Court was deprived of jurisdiction by utilizing this procedure. In Western Elec. Co. v. Capes, 164 Ga. App. 353 (1982), the Court utilized this very procedure and then held that it retained jurisdiction. Thus, Capes makes clear that this Court maintains jurisdiction over this appeal. Emory attempts to distinguish Capes by contending that it falls within an exception to the requirement for timely filing a notice of appeal where a constitutional violation would occur. [Appellee s Brief at 7-8]. This argument, however, goes to whether this Court should have exercised its discretion to vacate and reinstate, and not whether the process utilized by the Court deprived it of jurisdiction. Importantly, when Appellants moved for an order to vacate 2

Case A17A1671 Filed 07/06/2017 Page 4 of 20 and reinstate, Emory did not object. As noted above, this Court exercised its discretion to vacate and reinstate the order granting interlocutory appeal, and Appellants timely filed a notice of appeal within ten days of the reinstated order, thus satisfying the absolute requirement Emory discusses. This is not a situation like those described in the in the cases cited by Emory where a Notice of Appeal was simply filed late. Because the order granting interlocutory review was vacated and re-entered, the Notice of Appeal was timely filed, thus establishing this Court s jurisdiction. Further, it is important to note that that when Appellants filed their Petition for Interlocutory review, Appellant s counsel s correct address and email address were on the filing submitted to the Court. However, when the clerk sent the order granting review, it was sent to an old email address, utilized in a previous filing, while counsel was at another law firm. At the time of the filing of the Petition, and the grant of the petition, there was no rule or statute regarding updating an attorney s profile information in the Court s efast electronic filing system if it differed from the information provided on the pleading initially filed. This Court s rules were changed in January of this year to require counsel to update the profile and stating that the Court will not make these changes. Former Rule 9(e), in effect at the time Appellants filed their Petition for Interlocutory Review, provided: 3

Case A17A1671 Filed 07/06/2017 Page 5 of 20 Change of Address or Telephone Number. If during the pendency of any appeal or application counsel for either party has a change of address or telephone number, counsel shall file a notification of change of address or telephone number with the Court, notifying the Court of counsel's correct address and telephone number, and the effective date of such change. Former Ga. Ct. App. Rule 9 (emphasis added). The new Rule 9(e) provides: Change of Address, Telephone Number, or Email Address. Any change of address, telephone number, or email address must be made by the attorney in the Court s efast system. Attorneys are personally responsible for ensuring that their efast profile information is up to date. The Court will not make these changes. Attorneys are encouraged to register an additional CC email address for their administrative assistant or another point of contact. See Rule 46, Electronic Filing of Documents. Ga. Ct. App. Rule 9 Thus, at the time of the filing of the petition in this case, there was no rule requiring counsel to update her profile in the efast system. Counsel provided the Court her correct email address on the filing submitted to the Supreme Court which was then transferred to this Court. 1 However, when this Court initially granted the petition for interlocutory review, the clerk used an old email address 1 Appellant did not actually efile anything with this Court, and in fact, when counsel learned that the case had been transferred (by an email to the correct email address from the Supreme Court), she contacted the clerk s office and confirmed that she did not need to file anything as the filings would all be transferred from the Supreme Court by the clerk s office. 4

Case A17A1671 Filed 07/06/2017 Page 6 of 20 which did not and could not accept email to notify counsel of the Court s ruling. Thus, in this case, like in Capes, the order was sent to the wrong address, resulting in a lack of process. In sum, this Court correctly exercised its discretion to vacate and reinstate the order granting interlocutory review upon Appellants motion, which motion Appellees did not oppose. The act of vacating and reinstating the order for Appellants to meet the jurisdictional requirement of timely filing a notice of appeal did not deprive this Court of jurisdiction to hear the appeal, to the contrary, it preserved this Court s jurisdiction, as demonstrated by Capes. Accordingly, this Court has jurisdiction to hear this appeal. II. The Trial Court Erred In Holding That The Woerners Filing Of A Lawsuit For Personal Injury Waived Jacob Woerner s Right To Privacy In His Medical Records Regarding That Injury For All Purposes For All Time. Turning to the merits of the appeal, Appellants argue that the trial court erred in ordering full disclosure of Jacob Woerner s medical records, without limitation, on the grounds that his right to privacy in records regarding his injury had been waived forever and for all purposes by filing a prior lawsuit regarding his injury. Emory contends that the waiver regarding this injury is unlimited, such that it may disclose Jacob Woerner s medical records regarding this injury to any person, at any time, and for any purpose. Because there is no support in Georgia law for a reading of the litigation waiver to allow a medical care 5

Case A17A1671 Filed 07/06/2017 Page 7 of 20 provider to disclose its patient s medical records for any purpose they so choose, including for their own financial gain, simply because a personal injury suit has been filed, the trial court erred. A. The Litigation Waiver Does Not Waive The Right to Privacy in Medical Records for a Specific Injury For any Purpose Emory contends that when a plaintiff brings a personal injury action he waives his right to privacy, forever and for all purposes, in the medical records regarding that injury. It argues that the only limitation on this litigation waiver is that it applies only to the specific medical condition placed at issue. Appellee s Brief, p. 12. However, the law in Georgia is clear that the litigation waiver is a waiver of the right to privacy in a patient s medical records for a limited purpose i.e. the prosecution and defense of the personal injury claim. O.C.G.A. 24-12-1(a) 2, the new codification of the litigation waiver, provides in part: [T]he privilege shall be waived to the extent that the patient places his or her care and treatment or the nature and extent of his or her injuries at issue in any judicial proceeding. Courts in Georgia have consistently held that a patient s privacy interest in his medical records is not lost wholesale when he or she brings a personal injury claim. As the Court held in Baker v. Wellstar, 288 Ga. 336, 338 (2010): 2 Formerly O.C.G.A. 24-9-40(a). 6

Case A17A1671 Filed 07/06/2017 Page 8 of 20 Though HIPAA preempts Georgia law in its imposition of procedural requirements, see Moreland, supra, 284 Ga. at 733, the substantive right to medical privacy under Georgia law endures. See King v. State, (Georgia Constitution guarantees right of medical privacy). As previously noted, a litigant may waive this right to medical privacy under Georgia law only to the extent such information is relevant to the medical condition the litigant has placed in issue in the legal proceeding. Id. citations omitted, emphasis supplied. This is echoed in other statutes regarding the disclosure of medical records. O.C.G.A. 24-12-11 provides: The disclosure of confidential or privileged medical matter constituting all or part of a record kept by a health care facility, a nurse, or a physician, pursuant to laws requiring disclosure or pursuant to limited consent to disclosure, shall not serve to destroy or in any way abridge the confidential or privileged character thereof, except for the purpose for which such disclosure is made. Thus, it is clear that the litigation waiver does not destroy the right to privacy in medical records, except for the purpose of that waiver. The purpose of the litigation waiver is for a defendant to be able to defend themselves. Fairness dictates that a patient should not be permitted to use the medical records as a sword and a shield, on the one hand arguing that the records evidence the defendant s negligence or the patient s damages, while on the other hand using the privilege to prohibit the defendant from discovery appropriately tailored to those issues. Once the litigation is concluded, however, the purpose of the waiver, and the policy reasons behind it, have been satisfied, 7

Case A17A1671 Filed 07/06/2017 Page 9 of 20 and thus, the medical records under Georgia law retain their status as confidential and privileged for all other purposes, including, for example, in subsequent litigation not brought by the patient. Certainly no one would suggest that Emory could post Jacob s unredacted medical records on the internet with the caption interesting medical case handled at Emory. Such a disclosure of his records would shock the conscious, regardless of whether Emory only posted the medical records regarding the specific injury involved in the suit the Woerners brought. During the pendency of personal injury litigation, no one would suggest that a defendant could publish or disclose a plaintiff s medical records regarding the injury at issue for some commercial purpose. We understand that the litigation waiver of a plaintiff s privacy right is a limited one. The courts and the legislature have consistently applied that waiver to disclosures for the purpose of the litigation the plaintiff brought. Emory has pointed to no case where a patient s medical records were disclosed, over his objection, in a case in which the patient was not a party for some other purpose or some other litigation. Not one. Finding no case to support its argument, Emory contends that the limitation of the waiver proposed by Appellant is illogical because in litigation medical records will necessarily become public, and once made public, the bell cannot be unrung and the privilege cannot be reinstated. The problem 8

Case A17A1671 Filed 07/06/2017 Page 10 of 20 with Emory s argument is twofold. First, medical records need not be made public in all cases. In fact, Jacob Woerner s medical records were never made public, and most personal injury cases are resolved without medical records ever becoming part of the public record. Second, and most importantly, there are due process protections afforded when production of medical records is requested in a case where the patient is a party, in particular notice and an opportunity to object and be heard. If the patient is a party, the patient can object to and or argue for a limitation on the scope of any proposed disclosure. If this Court holds that the litigation waiver is a complete waiver of privacy in medical records regarding an injury, even in a subsequent case in which the patient is not a party (a holding not supported by the law of this state), patients would have no ability to monitor or protect the disclosure of their medical records, including broad sweeping information regarding medical history which is often included in records regarding specific injuries. A litigant could request the medical records of a nonparty patient through discovery without notice to the patient and without the patient having standing to object. In fact, the trial court in this case held that the Woerners could not object to the production of Jacob s records without becoming a party to litigation they had no desire to join. 9

Case A17A1671 Filed 07/06/2017 Page 11 of 20 In King v. State, 272 Ga 788 (2000), the Court discussed the due process implications of the production of a patient s medical records without the patient having the opportunity to be heard and to object. The Court held: Due process of the law must obtain as a matter of right and not merely by happenstance, or by the grace of judicial or other authorities." King v. State, 272 Ga. at 793. B. Emory s argument that the only limitation on the Litigation waiver is that it only applies to the specific medical condition placed at issue is not supported by any authority. In support of its argument that the only limitation on the litigation waiver is that it only applies to the specific medical condition placed at issue (Appellee s Brief, p. 12), Emory cites Baker v. Wellstar, 288 Ga. 336 (2010) and Orr v. Sievert, 162 Ga. App. 677 (1982). Neither of these cases supports Emory s argument. In both of these cases, the disclosure requested and discussed was for the purpose of defending the action the plaintiff had brought, and the disclosure allowed was narrowly tailored to information needed for that purpose. Nowhere in those cases, or in any other case cited by the Appellees, does any court state or imply that a medical provider can produce the records of its patient, over the patient s objection, in a case the patient did not bring. Baker stands for the proposition that the litigation waiver of the right to privacy in medical records is a limited waiver, and that the plaintiff still retains a 10

Case A17A1671 Filed 07/06/2017 Page 12 of 20 constitutional right to privacy in his medical records regarding the injury at issue. Thus, a defendant may engage in ex-parte communications with a plaintiff s treating physicians only after receiving a narrowly tailored Qualified Protective Order ( QPO ) that protects the patient s constitutional rights. Baker, 288 Ga. at 338. The Georgia Supreme Court in Baker held that the QPO entered by the trial court in that case was too broad because it violated the patient s constitutional privacy rights, even though the plaintiff had clearly placed his medical treatment for that injury at issue in the litigation. Id. Baker clearly held that a patient retains a constitutional right to privacy, and in no way supports the argument that the filing of a lawsuit waives that right for all purposes for that specific injury. In fact, Baker specifically discussed that the QPO entered required the records to be destroyed after the litigation and forbid the use of the information outside the litigation. 288 Ga. at 338. If Emory is right that the litigation waiver waives the right to privacy for that specific medical condition for all purposes, then there would be absolutely no limitation on what Emory could do with its patient s medical records after suit was filed. Baker does not support this argument. Similarly, in Orr v. Sievert, 162 Ga. App. 677, the disclosure the plaintiff complained of was a disclosure for the purpose of defending the plaintiff s claim for medical negligence. Orr, 162 Ga. App. at 677-78. The holding in Orr was 11

Case A17A1671 Filed 07/06/2017 Page 13 of 20 that a defendant physician had a right to obtain information and opinions from other care providers for the purpose of his defense in that litigation. Orr, again, does not support defendant s argument that the litigation waiver is a waiver for all purposes of information regarding a specific injury. Finally, Emory contends that Shipes v. BIC Corp., 154 F.R.D. 301, 306 (M.D. Ga. 1994), is persuasive authority for the proposition that, once the privilege is unconditionally waived, it cannot be resurrected. However, Shipes is factually distinct from this case. Unlike this case, in Shipes, the disclosing entity was not a healthcare provider but was a corporate defendant, and the party objecting was not the patient, but rather was the corporate defendant. In that case the patient had disclosed the records to the corporate entity. Moreover, Shipes determined that the records were not subject to the doctor/patient privilege because that had been waived. Id. at 306. However, Shipes was decided in 1994, before King v. State, and makes no mention of the constitutional right to privacy articulated in King. Thus, Shipes, like Orr and Baker does not support Emory s argument. Finally, even assuming, arguendo, that Emory is correct and the litigation waiver is limited only as to the scope of the medical condition placed at issue, the trial court still erred in ordering the production of Jacob Woerner s medical records. The trial court did not issue a QPO. Instead, the trial court granted the 12

Case A17A1671 Filed 07/06/2017 Page 14 of 20 motion to produce, with no limitation as to the scope of the medical records to be produced, including records beyond the scope of the condition at issue in the wrongful death litigation. [See R-393]. The trial court s order is not appropriately narrow under any construction of the litigation waiver, and must be reversed. C. Public Policy Weighs Against Permitting Disclosure As Urged by Emory Finally, Emory contends that, as a matter of public policy, it should be permitted to disclose Jacob Woerner s medical records because if the litigation waiver is limited only to the litigation in which the patient places the medical condition at issue, then no medical defendant could ever seek contribution. [Appellee s Brief at 16]. This is simply not true. Nothing prohibited Emory from joining the third parties in the wrongful death action and seeking contribution within that litigation. 3 Emory could have protected its financial interest by bringing its contribution claim in the malpractice litigation, that it failed to do so has no bearing on Jacob Woerner s constitutional right to privacy in his medical records. 3 Emory argues that it is not required to join third parties for contribution in the underlying litigation. [Appellee s Brief at 20, n.12]. Appellants do not dispute that Emory has no obligation to do so. Appellants contend only that joining those tortfeasors in the wrongful death litigation was one means by which Emory could pursue contribution and utilize Jacob s medical records within the scope of the litigation waiver. 13

Case A17A1671 Filed 07/06/2017 Page 15 of 20 But contrary to Emory s argument, public policy actually weighs in favor of Appellants proposed scope for the limited waiver. More than one hundred years ago, in 1905, Georgia set itself apart as a leader in recognizing the right to privacy enjoyed by its citizens. See Pavesich v. New England Life Inc. Co., 122 Ga. 190, 199 (1905). For this Court to adopt the policy urged by Emory would eviscerate that right to privacy and nullify more than a century of public policy protecting the right of privacy in medical records. Emory s desire to recoup some of the money it voluntarily paid to settle this malpractice action does not outweigh the constitutional right to privacy enjoyed by the citizens of Georgia. The Georgia Constitution provides better for its citizens. The trial court erred in permitting an unlimited disclosure of Jacob Woerner s medical records, in a case in which he did not put his medical condition at issue, and over his objection. The trial court s order should be reversed. III. The Trial Court Erred In Ordering Disclosure of the Confidential Settlement Agreement Finally, the trial court erred in ordering disclosure of the confidential settlement agreement. As an initial matter, Emory contends that Appellants waiver argument was not ruled upon by the trial court. Appellants raised this argument in their Brief in Support of their Request for Declaratory Relief. [R- 14

Case A17A1671 Filed 07/06/2017 Page 16 of 20 312 at 5-7]. The trial court also heard oral argument as to estoppel. [T:12]. The trial court s order does not expressly mention this argument, but denied Appellants motion and ordered disclosure of the settlement agreement, thus implicitly denying appellants argument as to estoppel. [See R-393]. This issue has been preserved for appellate review. Next, Emory contends that the agreement itself needs to be reviewed for this Court to determine this issue. Appellants disagree, as the issue of estoppel does not require construction of the contract provision by the Court. The agreement was provided to the trial court in camera and was not made part of the record. Next, Emory argues that the confidentiality provision contained exceptions permitting them to disclose the terms of the agreement. Indeed, the agreement specifically contemplates that the parties (plural) may disclose the terms of the agreement in certain specifically enumerated situations, including to a tax advisor or accountant. The agreement also provides: Releasors further agree and consent to the reproduction and use of the medical records and other materials associated with this matter with all identifying information redacted by Emory for all purposes educational and preventative. [T: 28]. The agreement does not expressly set forth an exception for contribution claims, however. If Emory intended to allow disclosure of the settlement 15

Case A17A1671 Filed 07/06/2017 Page 17 of 20 agreement in a subsequent contribution action, it could have bargained for that exception; it did not. The very notion that Emory could insist upon confidentiality, silencing Appellants, while then filing an action which necessarily requires production of the terms of that agreement violates the integrity of the judicial process and basic fairness and should not be permitted. CONCLUSION For the reasons set forth herein, this Court should reverse the order of the trial court. Respectfully Submitted this 6 th day of July, 2017. /s/ LAURA M. SHAMP LAURA M. SHAMP Georgia Bar No.: 637560 JOSHUA F. SILK Georgia Bar No. 903916 SHAMP SPEED JORDAN WOODWARD 1718 Peachtree Street, Suite 660 Atlanta, Georgia 30309 shamp@ssjwlaw.com Silk@ssjwlaw.com (404) 893-9400 (telephone) (404) 260-4180 (facsimile) Counsel for Appellants CLAY and DEBORAH WOERNER 16

Case A17A1671 Filed 07/06/2017 Page 18 of 20 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing APPELLANTS REPLY BRIEF has been provided via U.S. First Class Mail on this day to: David Ladner, Esq. One Midtown Plaza 1360 Peachtree Street, Suite 800 Atlanta, Georgia 30309 James Scarbourough Tracy Pruiett Mabry & McClelland, LLP 2200 Century Parkway, N.E. Suite 1000 Atlanta, Georgia 30345 James Brieske C. Michael Denny Gray, Rust, St. Amand, Moffett & Brieske 1700 Atlanta Plaza 950 East Paces Ferry Road Atlanta, Georgia 30345 Charles Hoey Leitner, Williams, Dooley & Napolitan, PLLC 200 Ashford Center North Suite 305 Atlanta, Georgia 30338 Respectfully Submitted this 6 th day of July, 2017. /s/ LAURA M. SHAMP LAURA M. SHAMP Georgia Bar No.: 637560 17

Case A17A1671 Filed 07/06/2017 Page 19 of 20 SHAMP SPEED JORDAN WOODWARD 1718 Peachtree Street, Suite 660 Atlanta, Georgia 30309 (404) 893-9400 (telephone) (404) 260-4180 (facsimile) Counsel for Appellants CLAY and DEBORAH WOERNER 18

Case A17A1671 Filed 07/06/2017 Page 20 of 20 CERTIFICATE OF COMPLIANCE WITH RULE 24 I hereby certify that this submission does not exceed the word count limit imposed by Rule 24(f). Respectfully Submitted this 6th day of July, 2017. /s/ LAURA M. SHAMP LAURA M. SHAMP Georgia Bar No.: 637560 SHAMP SPEED JORDAN WOODWARD 1718 Peachtree Street, Suite 660 Atlanta, Georgia 30309 (404) 893-9400 (telephone) (404) 260-4180 (facsimile) Counsel for Appellants CLAY and DEBORAH WOERNER 19