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The Georgia Court of Appeals is already exploring the limits of the Georgia Supreme Court’s latest decision on medical records privacy, affirming the right of a defense lawyer to obtain psychiatric records to impugn a witness’ credibility. An October ruling by the state’s highest court carved out certain procedural safeguards that should be employed when personal medical records are obtained for use in court. But an appellate panel has now declined to extend those safeguards in a case that it says involves essentially different facts. Last month the high court ruled that a prosecutor can’t obtain a defendant’s medical records unless the defendant consents or has an opportunity to object. King v. State, No. S99A1490 (Sup. Ct. Ga. Dec’d Oct. 2, 2000). In that case, the state subpoenaed the hospital records of Rebecca King, whom it was prosecuting on drunk driving charges, to show that her blood alcohol level was elevated. Legal scholars at the time said the decision makes clear that the privacy right, though not absolute, encompasses certain procedural requirements. Now a Court of Appeals panel has decided a case that presents a related question: Can a defense lawyer obtain the psychiatric records of the victim in a criminal case? Columbus, Ga., defense lawyer Stephen Hyles subpoenaed the psychiatric records of Riann Karpowicz, a woman who alleged she had been falsely imprisoned and raped. At the alleged rapist’s trial, Hyles introduced portions of those records to impeach a witness. The records showed that Karpowicz had been admitted to the hospital for “excessive lying.” The jury deliberated for less than an hour before acquitting the defendant. In an unusual move, Karpowicz and her mother sued Hyles, claiming, among other things, that the lawyer had invaded Riann’s fundamental right to privacy by subpoenaing her psychiatric records. Karpowicz v. Hyles, No. A00A1731 (App. Ct. Ga. Dec’d Nov. 28, 2000). The right of privacy declared in the high court’s ruling last month “certainly extends to privileged psychiatric records,” Court of Appeals Presiding Judge J.D. Smith wrote for a panel that included Chief Judge Edward H. Johnson and Judge Herbert E. Phipps. But the Court of Appeals refused to recognize that Riann’s right to privacy had been violated because state conduct was not at issue in her case as it was in King. “We cannot conclude that this can be considered a public disclosure of private or embarrassing facts,” the panel said. Frank J. Beltran, of Atlanta’s Beltran & Associates, represents the Karpowiczes. He says he intends to move for reconsideration or file for certiorari to the Georgia Supreme Court. “We really believe there is an invasion of privacy here,” Beltran says. Beltran says he thinks the opinion is contrary to public policy and isn’t supported by Georgia’s most recent case law on the subject. King is controlling, he says, as is another recent case that deals specifically with psychiatric records. But Christine L. Mast of Hawkins and Parnell, who represents Hyles, says the Court of Appeals construed King properly. The court spent several pages addressing the distinctions between King and the case brought against her client, she says. “And I think that’s a correct analysis.” “My client is a well-respected lawyer who takes his job very seriously, and the allegations were very serious,” Mast adds. BROAD PRIVACY RIGHTS AT ISSUE Although both cases address the release of medical information for use in a court proceeding, Emory University School of Law associate professor Robert A. Schapiro says there are broader privacy rights at stake. “I think that one of the things that King discussed is that there is a right to privacy in medical information and that the release of information can be an infringement even when it is not used in court,” Schapiro says. Schapiro authored an amicus brief in King, at the high court’s request. While the Karpowicz opinion devotes ample space to discussing King, Schapiro says the ruling does seem to raise different issues. “The core of this opinion is that the court was unwilling to charge the defense attorney … with the responsibility for ensuring that private psychiatric information would not be released,” Schapiro says. But there may still be a constitutional right to privacy that should mean that a hospital can’t turn over records, he says. GEORGIA AT PRIVACY FOREFRONT Because the right of privacy has a lengthy and renowned history in Georgia, scholars monitor the state’s privacy cases. The Georgia Supreme Court was the first state court to recognize an enforceable privacy right, which it did in the 1905 case of Pavesich v. New England. First-year law students across the country typically pore over the case of Atlantan Paolo Pavesich, whose photograph was used in an advertisement without his permission. More recently, in 1986, the U.S. Supreme Court heard the Georgia case of Bowers v. Hardwick, another staple of law school curricula. In a 5-4 decision the court rejected the privacy claims of Michael Hardwick, who was arrested and charged under Georgia’s sodomy law after a policeman looked into his bedroom and saw him engaged in sex acts with another man. The Georgia Supreme Court rejected the state’s sodomy statute more than 10 years later. In the 1998 case of Powell v. State, the court ruled that the law criminalizing acts of sodomy by consenting adults in private violates the right of privacy guaranteed by the state constitution. The right of privacy is “a fundamental constitutional right, having a value so essential to individual liberty in our society that its infringement merits careful scrutiny by the courts,” the Powell court said. It is that language the Court of Appeals quoted in its Karpowicz ruling, to emphasize that, while it rejected the claimed privacy rights, it was engaging in the “careful scrutiny” required under established law. Although Karpowicz is the first Court of Appeals case to construe King, Schapiro predicts it won’t be the last. “[I]n a variety of contexts courts in Georgia will continue to explore the implications of King with regard to the privacy of medical information, and what procedural requirements are necessary before that information can be released,” he says.

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