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The Georgia Supreme Court, one of the first courts to recognize a right to privacy under a state constitution, has further defined that right in an appeal involving medical records privacy. This week the court upheld the constitutionality of a Georgia statute that allows law enforcement officials to subpoena a person’s medical records. But the court also held that those records are protected under a constitutional right to privacy, so they cannot be disclosed without consent unless there are procedural safeguards. King v. State, No. S99A1490 (Sup. Ct. Ga. Oct. 2, 2000). “The decision makes clear that the right to privacy is not absolute,” says Paul M. Kurtz, J. Alton Hosch Professor and associate dean of the University of Georgia School of Law. “I think it is important that the court unanimously stated that the state right to privacy encompasses certain procedural requirements,” says Robert A. Schapiro, an associate professor of law at Emory University School of Law. Kurtz and Schapiro were asked by the high court to give their expert analysis of the legal issues in the case, and did so in a joint amicus brief. RECORDS OBTAINED WITHOUT OK The case stems from an auto accident involving Rebecca King. Emergency personnel transported her to the hospital before police arrived at the scene. At the accident and at the hospital, King was semi-conscious. She was treated according to the hospital’s trauma protocol, which included a blood alcohol test. Results showed King had a blood alcohol level of .15. This test was for diagnosis and treatment only. King did not consent to the test, and she was not under arrest when the test was performed. About an hour later, an investigating officer arrived at the hospital and requested a state-administered test to determine King’s blood alcohol content. Based on the results of this test, King was charged with several counts of driving under the influence, including a less safe driver violation. In Georgia, regardless of a person’s blood-alcohol level, he or she may not drive under the influence when doing so makes it less safe for that person to drive. Before trial, King moved to suppress the results of the state-administered test. The court granted her motion because the prosecution could not prove the identity and qualifications of the person who had drawn the blood, as required under the law. Without King’s knowledge, the state then subpoenaed her personal medical records from the hospital where she had been treated, which included the earlier hospital-administered test. The hospital turned the records over to the prosecution. King then moved to quash the subpoena and prevent the results of the hospital tests from being used at trial. Specifically, she challenged Georgia’s O.C.G.A. Sec. 24-9-40 (a) as violating her constitutional right to privacy. That statute provides that health-care providers may release medical information about their patients if compelled by a court order or subpoena. The trial court denied King’s motions, and her blood alcohol results were admitted during trial. The jury found King guilty of driving under the influence of alcohol to the extent that it was less safe for her to drive. TWO RULINGS BY COURT In March, a divided Georgia Supreme Court overturned King’s DUI conviction, striking down O.C.G.A. Sec. 24-9-40 (a) as an unconstitutional infringement on a person’s right to privacy. “An individual’s medical information is clearly a matter which a reasonable citizen would view as private and which falls within the constitutionally protected right to privacy,” Justice Hugh P. Thompson wrote for the plurality. To the extent that the statute allows health-care providers to release medical records merely on a subpoena, it violates that right, he concluded. King v. State, No. S99A1490 (Sup. Ct. Ga. March 30, 2000). Justice Leah J. Sears and Chief Justice Robert Benham joined in the decision. Justice George H. Carley concurred specially and Justice Carol W. Hunstein, joined by Justice P. Harris Hines and Presiding Judge Norman S. Fletcher, dissented. The state filed a motion for reconsideration, and the high court granted it, vacating its March opinion. In its second decision, the high court has now said that O.C.G.A. Sec. 24-9-40 (a) is not unconstitutional on its face and that a Georgia citizen’s right to privacy is not absolute. However, since King did not have notice and a chance to object to the state’s subpoena, O.C.G.A. Sec. 24-9-40 (a), cannot be constitutionally applied in her criminal case, the court ruled. “Our holding is simply that, in the absence of waiver and without notice to the accused or an opportunity to object, it is not ‘appropriate’ under that statute for the State in a criminal case to subpoena a defendant’s own personal medical records which are then in the possession of a physician, hospital or health care facility,” writes Justice George H. Carley. NOTICE CRITICAL STEP Under the court’s latest ruling, a defendant must be notified and given a chance to challenge a prosecutor’s subpoena for personal medical records. Although the ruling appears narrower than the court’s prior ruling, Kurtz says that “people who are interested in privacy should applaud this decision.” District attorneys, he says, routinely have obtained medical records without a defendant’s knowledge. Now defendants have a chance to go into court and quash such subpoenas. However, Kurtz and Schapiro point out that questions remain as to what constitutes notice, and they suspect these questions will be hashed out in later decisions. This decision comes at a time when the issue of medical records privacy is being reviewed by courts all over the country. Particularly important, Schapiro says, is what kinds of procedures are required before the government can obtain personal medical information.

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