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Notes on Informal Physician Interviews

By James M. Beck and Mark Herrmann

A couple of readers dropped us notes after reading yesterday's post about the situation with informal treating physician interviews in New Jersey.

Brad Wolff at Swift Currie kindly updated us on Georgia, which isn't as much of a lost cause as we thought.  While the recent Georgia Supreme Court opinion in Baker v. Wellstar Health Systems, Inc., 2010 WL 2159372 (Ga. June 1, 2010), reaffirmed the court's minority view that there's HIPAA preemption, id. at *1, it also held that our side can obtain court orders allowing such interviews even where the plaintiff (as always) does not consent - although it found the particular order before it overbroad.  Id. at *3.  The court has good things to say about the practicalities of informal defense interviews.  Id. at *2-3.

One of you who prefers to remain nameless, pointed out that we were also behind the times in Texas, where the statutory authorization of informal physician interviews was upheld in In re Collins, 286 S.W.3d 911, 919-20 (Tex. 2009).  The Texas Supreme Court also adopted the majority (and correct) position that HIPAA has no preemptive effect on state litigation procedure.  Id. at 920.

We're updating our 50-state survey to reflect these developments, and we welcome additional corrections.

Full post as published by Drug and Device Law on July 09, 2010 (boomark / email).