Georgia Supreme Court -- Civil Cases from Monday

The Georgia Supreme Court issued four opinions in general civil cases Monday.

The case getting the most attention is the court's most recent decision in a line of cases interpreting the Georgia Legislature's attempts at tort reform.  In Allen v. Wright, the Georgia Supreme Court invalidated the requirement of filing authorizations for disclosure of medical records along with the complaint in med mal cases (OCGA § 9-11-9.2) because it violates HIPAA. The defendants moved to dismiss the plaintiff's complaint because they contended her authorizations did not comply with the statute's requirements, but the trial court found the statute was preempted by the (federal) Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Court of Appeals affirmed (relying on its decision in Northlake Medical Center v. Queen, 280 Ga. App. 510 (2006)).

The Georgia Supreme Court agreed with the Court of Appeals that the legislature doomed the statute by failing to specify that the authorization comply with HIPAA. HIPAA would require that the patient have the right to revoke the authorization (without having to dismiss the lawsuit at the same time), and that the authorization provide identification of the information to be disclosed and an expiration date or event. Justice Hunstein dissented, contending that the Georgia statute should be read to incorporate the HIPAA requirements for an authorization, but the rest of the court rejected that argument, holding that the legislature "cannot authorize disclosure based upon less stringent requirements than those mandated by the federal law," and it was the responsibility of the legislature to ensure that the statute was written so as not to be preempted. Note: it would thus seem impossible, under this decision, to enforce any requirement for authorizations, because in the court's view, the plaintiff must retain an unfettered federal right to revoke the authorization at any time -- even the day after the complaint was filed.

In Duty Free Air and Supply Shop v. City of Atlanta, the Court addressed the City's contracting procedures. Duty Free submitted a sealed bid in response to an RFP, and was selected by the procurement officer as the winner, only to have another bidder successfully appeal the award in superior court.  Duty Free appealed that ruling to the Court of Appeals, but while the appeal was pending, the City announced it would cancel the RFP and issue a revised RFP. When the Court of Appeals ruled in favor of Duty Free, Duty Free filed a petition for mandamus seeking to require the City to execute the original contract, to which Duty Free contended it was legally entitled. The trial court denied mandamus, and the Georgia Supreme Court affirmed, holding that local laws and ordinances govern the manner of entering into and executing contracts, and that neither the City Council nor the Mayor had exercised their discretionary authority to approve the award, as provided under the local law.  Justices Carley and Thompson dissented, agreeing with Duty Free that under OCGA § 39-91-21, the City had already completed the formation of a contract when the procurement officer awarded Duty Free the bid, and that local law could not alter that fact.  (Disclosure: BME represents Duty Free in this appeal.)

The remaining two cases briefly address procedural matters. In Kelly v. Dawson County, the court affirmed a dismissal of an appeal for a 4-day delay in filing a transcript and a longer delay in filing exhibits. OCGA § 5-6-42 requires a transcript to be prepared and filed within 30 days after filing the notice of appeal, and exhibits must be duplicated as well. In this case, the trial court clerk's office told counsel they did not have the capability of duplicating the exhibits, and the completed transcript was misdirected to the wrong attorney's office. Nevertheless, the Supreme Court affirmed the trial court's dismissal -- striking fear into the hearts of all attorneys who deal with, shall we say, less-organized clerks' offices. And in Pipkin v. Boggs, the appellants inexplicably complained that the trial court made findings of fact and conclusions of law in ruling on an interlocutory injunction. "Far from constituting reversible error, this Court greatly appreciates the trial court's voluntary inclusion of written findings of fact and conclusions of law in its July 21, 2006 order."