Georgia appellate court decides patient/plaintiffs do not have to allow defense counsel ex parte meetings with doctors, but what about GA workers’ comp claimants?

In July of 2008, Francine Ehrlich began residing at a Georgia nursing home owned by the Emeritus Corporation. She needed help with her daily routine because she was suffering from Alzheimer’s and mild dementia. At the time she took up residence in the nursing home, Mrs. Ehrlich was mobile with the assistance of a walker and otherwise healthy and fit.

On August 28th, a nursing home employee noticed a pressure wound on Mrs. Ehrlich’s right buttock. Mrs. Ehrlich’s daughter, Barbara Woods, requested that Ms. Ehrlich be transported to a hospital on September 2nd; there a doctor examined Mrs. Ehrlich, treated her and released her. Two days later a home health care company called Staff Builders was contracted to provide nurses that would monitor and care for Mrs. Ehrlich’s wound on-site at the nursing home.

Over the course of the next two months, the pressure wound became large, deep and infected, all while Mrs. Ehrlich’s mental and physical health rapidly deteriorated. On October 3, Mrs. Ehrlich was examined at another hospital’s wound treatment center, then immediately transferred and admitted to yet another hospital because of her wound’s severity. It was classed as a ‘large Stage IV Decubitis ulcer’ and was so deep that Mrs. Ehrlich’s sacrum bone was visible. Mrs. Ehrlich required debridement surgery and antibiotic therapy, which she did not respond well to. On November 5th she was discharged from the hospital and transferred to the home of a family member where she received hospice care until dying on November 15th.

In July of 2010, the deceased woman’s children -Barbara Woods, Howard Ehrlich, and Kenneth Ehrlich–brought suit against Emeritus Corporation, et al. (the owners of the nursing home) and Tender Loving Health Care Services of Georgia, et al. (the parent company for Staff Builders), saying that Emeritus was liable for the negligence of their mother’s caretakers, both on-staff and hired in. They also asserted that the nursing home knew that their mother required a transfer so as to receive a better level of care, and alleged violations of state and federal laws dealing with nursing home operations and patients’ rights.

The defendants answered the complaint filed, disputing it, and requested that the plaintiffs allow them to conduct ex parte interviews (i.e., talks with the doctors without the plaintiffs or their counsel present) with their mother’s healthcare providers. The defendants wanted the plaintiffs to either sign a HIPPA medical authorization form or agree to a consent order from the court that would allow the interviews. The plaintiffs refused, and in December 2010 the defendants filed a motion for a Qualified Protection order under HIPAA that would allow them ex parte access to the healthcare providers that they wanted to interview. The defendants also stipulated that, should the QPO be denied, the plaintiffs should be subject to the same requirements as them and have restricted access to healthcare providers so that there would be “equal access and and a level playing field in interviewing treating medical providers, who are ultimately third party fact witnesses that should be equally available to all parties in the case.”

On January 26th, 2011, the Court rejected the defendants’ joint QPO motion, and on January 31st, the Court denied an alternative motion to bar the plaintiffs from conducting ex parte interviews of Mrs. Ehrlich’s providers.  The defendants appealed, saying that by shooting down their motions, the Court violated their constitutional rights to both equal protection and due process.

The Court of Appeals disagreed, and in their ruling said, “the surviving adult children of the decedent and/or the administrator of the decedent’s estate, brought wrongful death and medical malpractice claims to recover for the decedent’s injuries and death….the plaintiffs are only authorized to do so because the decedent, who had a privileged, confidential relationship with her healthcare providers at the time  they obtained the information at issue here, is no longer alive and able to represent her own interests….” Basically, the plaintiffs were not found to be at an advantage as a result of their access to the healthcare providers, because they were acting in their mother’s stead, and she had certain rights and privacy privileges under the law because she was the patient.

Of course, this was a negligence lawsuit, but similar issues exist in Georgia workers’ compensation claims:  should insurance companies and their attorneys be allowed to meet with–and therefore influence–an injured worker’s treating doctors without the injured worker (or his/her attorney) present (or even notified of such contact)?  Sadly, the Georgia Supreme Court has decided the answer is “yes.”  In the McRae v. Arby’s decision, the Court of Appeals was reversed on this issue.  While the treating doctor isn’t required to agree to such meetings, my experience is that most will.  Unfortunately, my experience is also that such meetings aren’t designed for figuring out how to deliver the quickest and best medical care for the injured worker, but rather, to figure out how to break the causation chain for recommended medical procedures, get the patient released to normal duty despite continuing pain, or portray the patient as a malingerer through edited (or invalid) surveillance videos.  Such is why I would prefer that meetings with treating doctors be attended by both attorneys, as is done in civil lawsuits.

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