Justinian Lane

Federal Preemption Cuts Both Ways - Georgia Citizens Protected By HIPPA

The "reform" movement is always pushing for a Federal tort "reform" package that will preempt state tort laws.  Such a preemption would mean that the "reform" lobby could impose their will upon the citizens of every state.

Preemption generally works against citizens in favor of corporations.  But here's an instance where preemption actually worked for citizens:

In the malpractice case, Justice George H. Carley wrote for a 6-1 majority of the justices that the underlying law, O.C.G.A. § 9-11-9.2, is preempted by the federal privacy provisions of the Health Insurance Portability and Accountability Act of 1996, or HIPAA.

“State law may provide for more stringent requirements on the disclosure of protected health information than HIPAA does, but cannot authorize disclosure based upon less stringent requirements than those mandated by the federal law,” Carley wrote...

Joe Watkins, president of the Georgia Trial Lawyers Association, which filed an amicus brief on behalf of Thomas’s client, wrote in an e-mail, “We applaud the Supreme Court for strictly interpreting the Georgia law and not trying to legislate from the bench a better law than the one the Legislature rushed into law two years ago.”

Donald J. Palmisano, general counsel of the Medical Association of Georgia, which filed an amicus brief supporting the medical providers in the case, said that the high court’s opinion goes against the state’s long-recognized provision that when a plaintiff puts his medical treatment at issue in a case, he’s also putting his medical history on trial.

Source: Supreme Court blocks part of ‘tort reform’ law - Daily Report

Presumably, there will be a flurry of press releases decrying this decision and warning that Georgia's supply of physicians is being threatened and that the sky has begun to fall in Georgia.

Cross-posted to Corpreform

Justinian Lane: Author Bio | Other Posts
Posted at 9:00 PM, May 14, 2007 in Medical Malpractice
Permalink | Email to Friend


More likely, in a few months we'll see yet another disingenuous press release from the Georgia Trial Lawyer's Association which doesn't mention this decision at all, but states something along the lines of "Tort reform laws were enacted several years ago but insurance rates haven't gone down, so this is proof that tort reform doesn't help."

(Of course insurance companies don't lower rates in response to the enactment of tort reform laws, given that trial lawyers regularly rush to the courts to thwart the will of the legislature.)

Posted by: David Nieporent | May 15, 2007 4:48 AM

You say "thwart the will of the legislature," I say "uphold the Constitution." Or should legislatures get to trample the U.S. and State Constitutions in order to protect insurance companies?

Posted by: Justinian Lane | May 15, 2007 10:24 AM