A State Supreme Court has recently invalidated a section of a recently enacted tort reform package because it was inconsistent with federal regulations. OCGA section 9-11-9.2 required medical malpractice plaintiffs to sign a waiver releasing all medical records to the defendant. Failure to provide this waiver at the time a plaintiff files suit would result in a dismissal.
There were reasons why the court found this troubling. First, the state law did not provide a way for the plaintiff to revoke the privacy waiver. Second, the state law required a blanket waiver that gave access to all medical records. In contrast, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that a plaintiff retain the power to revoke the privacy waiver. HIPAA also requires that medical record waivers expressly provide a specific and meaningful identification of which information is part of the privacy waiver.
Because the State Supreme Court could not reconcile the state and federal laws, the Supremacy Clause of the U.S. Constitution required that the state law be invalidated. In so doing, the state court sent a signal to the state legislature that, if the state law-making body wanted to re-enact the provisions, it could do so, so long as any re-enacted statute would be altered to provide standards that were at least as protective of health information as HIPAA.