(Code 1981, §31-32-2, enacted by Ga. L. 1984, p. 1680, § 1; Code 1981, §31-33-2, as redesignated by Ga. L. 1985, p. 149, § 31; Ga. L. 2001, p. 1157, § 1; Ga. L. 2002, p. 641, § 2; Ga. L. 2006, p. 494, § 3/HB 912; Ga. L. 2007, p. 133, § 13/HB 24; Ga. L. 2008, p. 12, § 2-32/SB 433.)
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2006, "and" was added at the end of subparagraph (a)(2)(C), in subsection (b), a comma was deleted following "Code section shall" in the introductory language, and "section" was substituted for "Section" in paragraph (b)(2).
Pursuant to Code Section 28-9-5, in 2008, "by the department" was deleted following "hospitals as issued" in division (a)(1)(B)(ii).
Editor's notes.- Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.
"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.
"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.
"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."
Law reviews.- For article, "What Every Attorney Should Know About Health Care Law," see 15 (No. 6) Ga. St. B. J. 17 (2010). For note on the 2002 amendment of this Code section, see 19 Ga. St. U. L. Rev. 200 (2002).
JUDICIAL DECISIONS
O.C.G.A.
§ 31-33-2(a)(2) not preempted by 45 C.F.R. § 164.502(g)(4). - O.C.G.A. § 31-33-2(a)(2) is more stringent than, and thus is not preempted by, 45 C.F.R. § 164.502(g)(4) because § 164.502(g)(4) permits an executor, administrator, or some other person authorized to act on behalf of the decedent or his or her estate to obtain protected health information, but the person whom § 31-33-2(a)(2) allows to act on behalf of the deceased individual or the estate is only the executor or administrator if the estate is represented, and only the surviving spouse if one exists and the estate is unrepresented. Alvista Healthcare Ctr. v. Miller, 286 Ga. 122, 686 S.E.2d 96 (2009).
Under federal law, decedent's surviving spouse entitled to decedent's medical records.
- Nursing home was obliged to release a decedent's medical records to the decedent's surviving spouse who was pursuing a wrongful death action since under O.C.G.A. §§ 31-33-2(a)(2)(B) and51-4-2 the spouse was authorized to access those records, and the trial court's order requiring the release of the records complied with the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. Alvista Healthcare Ctr., Inc. v. Miller, 296 Ga. App. 133, 673 S.E.2d 637 (2009).
Court of appeals did not err in affirming an order granting a surviving spouse a temporary restraining order and permanent injunction requiring the owner of a nursing care facility to release a decedent's medical records and a declaratory judgment that the spouse was entitled to the records pursuant to O.C.G.A. § 31-33-2(a)(2)(B) because the spouse was entitled to access the decedent's protected health information in accordance with 45 C.F.R. § 164.502(g)(4) when § 31-33-2(a)(2)(B) authorized a surviving spouse to act on behalf of the decedent or the estate in obtaining medical records; except for mental health records and any records which remained privileged or confidential, all of the decedent's protected health information was relevant to the limited personal representation granted to a surviving spouse by § 31-33-2(a)(2)(B), and the spouse, by qualifying for that limited personal representation and requesting medical records which the spouse was authorized to request by virtue of such representation, had met every requirement of 45 C.F.R. § 164.502(g)(4). Alvista Healthcare Ctr. v. Miller, 286 Ga. 122, 686 S.E.2d 96 (2009).
Because the evident purpose of O.C.G.A. § 31-33-2(a)(2), when read in conjunction with § 31-33-2(b)(1), is to identify several persons, the executor or administrator being the first choice and the surviving spouse being the second, who have authority to submit an authorization in compliance with the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, and to obtain medical records on behalf of the decedent or the decedent's estate, § 31-33-2(a)(2) constitutes the applicable state law to which 45 C.F.R. § 164.502(g)(4) refers, and § 31-33-2(a)(2)(B) necessarily implies that, when there is no executor or administrator, the surviving spouse is granted authority to act on behalf of the decedent or his or her estate with respect to requests for medical records. Alvista Healthcare Ctr. v. Miller, 286 Ga. 122, 686 S.E.2d 96 (2009).
O.C.G.A. § 31-33-2(a)(2) treats the surviving spouse as a personal representative in lieu of the executor or administrator with respect to requests for medical records and § 31-33-2(a)(2)(B) establishes a limited personal representation in the surviving spouse for the express purpose of obtaining the decedent's medical records in compliance with the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, the Georgia statute does not provide for personal representation by the surviving spouse for other purposes, but the statute permits the spouse to obtain all types of medical records, other than mental health records as excepted by O.C.G.A. § 31-33-4, and subject to the preservation in O.C.G.A. § 31-33-6 of the privileged or confidential nature of communications recognized in other laws, and therefore, § 31-33-2(a)(2) is carefully tailored to provide the authority contemplated by 45 C.F.R. § 164.502(g)(4). Alvista Healthcare Ctr. v. Miller, 286 Ga. 122, 686 S.E.2d 96 (2009).
45 C.F.R. § 164.502(g)(4) does not require that the person having authority to act on behalf of the decedent or his or her estate and requesting medical records must intend to make future use of those records in his or her fiduciary capacity as a personal representative because when the person having authority to act on behalf of the decedent or the estate makes a request for medical records which is within the scope of that authority, the very request constitutes an action in that person's capacity as a limited personal representative, and such request is the only action which can come within the limited personal representation established by O.C.G.A. § 31-33-2(a)(2) for the purpose of obtaining medical records; once the medical records are obtained by a person authorized by state law to act on behalf of the decedent or the estate by requesting them, 45 C.F.R. § 164.502(g)(4) does not restrict the future use of those records, and after obtaining the medical records, therefore, the surviving spouse may pursue a wrongful death claim, he or she may seek appointment as administrator in order to bring a survival action on behalf of the estate pursuant to O.C.G.A. § 51-4-5(b), he or she may do both or may do neither. Alvista Healthcare Ctr. v. Miller, 286 Ga. 122, 686 S.E.2d 96 (2009).
Patient's authorization required.
- Trial court did not abuse the court's discretion in denying the doctors' copies of records of former patients in the absence of patient authorizations as the new practice owned the records. Gerguis v. Statesboro HMA Medical Group, LLC, 331 Ga. App. 867, 772 S.E.2d 227 (2015).
OPINIONS OF THE ATTORNEY GENERAL
Refusing copies of reports to applicant for disability retirement benefits.
- If the medical board of the Employees Retirement System determines that the examining physician has met the criteria of subsection (c) of O.C.G.A. § 31-33-2 in recommending nondisclosure of medical records prepared in the evaluation of a claim for disability retirement benefits, it is appropriate to refuse copies of those reports to the applicant who was examined. 1992 Op. Att'y Gen. No. 92-19.