Coto v. Trs. of Bridges of Hope Charitable Trust

354 Ga.App. 435

841 S.E.2d 88

COTO et al.

v.TRUSTEES OF BRIDGES OF HOPE CHARITABLE TRUST et al.

A19A2159

Court of Appeals of Georgia.

March 12, 2020

Edenfield Cox & Bruce, Gerald M. Edenfield, Susan W. Cox, Andrew J. Lavoie ; Ray C. Smith, for appellants.

Hawkins Parnell & Young, Warner S. Fox, Joseph H. Wieseman, for appellees.

Coomer, Judge.

In this wrongful death appeal, Michael A. Coto, individually, and Tammy Coto, individually and as the executor of the estate of Michael C. Coto ("Appellants"), challenge the trial court's denial of their motion to authorize the substance abuse treatment facility where their son, Michael C. Coto, died to disclose confidential information concerning certain residents of the facility. Appellants argue that the trial court erred by denying their motion (i) on the basis that good cause had not been shown for the disclosures, (ii) on the basis that they failed to give notice to the patient-residents whose information they were seeking, and (iii) without conducting an in camera review of the records. Because Appellants failed to provide the requisite notice to the patient-residents, we affirm.

The record shows that in February 2016, Michael C. Coto was admitted to a residential substance abuse treatment facility operated by Bridges of Hope Charitable Trust ("BOH"). He died at the facility two days later in a room that he shared with at least one other resident. An autopsy revealed that he died as a result of the toxic effects of multiple drugs in his system.

The following year, Michael's parents filed a civil action seeking recovery for their son's death. During discovery, counsel for Appellants told opposing counsel he wanted to depose three nonparty witnesses who Appellants believed had been residents of BOH and interacted with Michael or Appellants before Michael's death.¹ In response, counsel for BOH stated: "With respect to the three residents you want to depose, we do not represent them and cannot accept a subpoena on their respective behalf. We also cannot give you contact information willingly because that would fall under the restrictions against disclosure at 42 CFR Part 2 and we have no consent to disclose any information. You will need to obtain an order."

Appellants then filed a motion to authorize disclosure of protected patient information. In the motion, Appellants asked the trial court to authorize release of (1) the residents’ last-known contact information, (2) information concerning those residents’ treatment, residency, or work at BOH during the period of time while Michael was a resident there, and (3) information concerning any actions taken, or statements given, by those residents with respect to Michael's death at BOH or any subsequent investigations.²

The trial court denied the motion on the grounds that the plaintiffs had not shown good cause for the requested disclosures and that no notice of the requests had been provided to the nonparty residents. We subsequently granted Appellants’ discretionary application for appeal.

1. Appellants argue that the trial court erred in denying the disclosure motion on the basis that they failed to provide notice to the patient-residents whose records they were seeking. Specifically, they argue that because BOH objected to written discovery and deposition questions that would elicit the names or contact information of any nonparty residents who may have interacted with Appellants and their son, BOH made it impossible for them to contact the residents themselves. Therefore, BOH should be estopped from "taking advantage" of the lack of notice to the patient-residents by Appellants. Appellants also argue that lack of notice is not a proper basis to deny the motion outright, and we should remand so that notice can be provided. We disagree with both contentions.

(a) ‘‘Federal law restricts the disclosure of information obtained ‘in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research’ conducted by the United States or with federal money. 42 USC § 290dd-2. Disclosure is permitted with patient consent, 42 USC § 290dd-2(b)(1), or ‘[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm,’ id. § 290dd-2(b)(2)(C).’’ United States ex rel. Chandler v. Cook County, Illinois , 277 F.3d 969, 982 (III) (B) (7th Cir. 2002).³

In order for a court to issue an order authorizing disclosure, 42 CFR § 2.64 (b) first requires that notice be provided to the patient and the person holding the records from whom disclosure is sought. It is undisputed here that notice was not provided to the patients.

Appellants’ estoppel argument — that BOH essentially prevented them from complying with the notice requirement by not disclosing the information during discovery — is misplaced. In the absence of patient consent or a court order, BOH was prevented by law from disclosing confidential information about its patients. See 42 CFR § 2.61 (a) (The "purpose [of a disclosure order] is to authorize a disclosure or use of patient information which would otherwise be prohibited by 42 USC 290dd-2 [.]" (emphasis supplied)). Moreover, even with an order, BOH would not have been required to disclose the information to Appellants. See id. ("Such an order does not compel disclosure. A subpoena or a similar legal mandate must be issued in order to compel disclosure.").

Because Appellants did not comply with the notice requirement for obtaining a disclosure order, and BOH was under no obligation to otherwise disclose the information, the trial court did not err in denying the motion on that basis. See Hicks v. Talbott Recovery System , 196 F.3d 1226, 1242 (II) (B), n.32 (11th Cir. 1999) ("These stringent federal regulations include application for disclosure [along with] ... adequate notice to the patient[.]"). See also Foster v. Swinney , 263 Ga. App. 510, 511, 588 S.E.2d 307 (2003) ("Georgia's public policy is to maintain the confidentiality of medical records, including drug treatment records[.]").

(b) Appellants argue that none of the three cases cited by the trial court stand for the proposition that a lack of notice to patients or residents can be grounds to deny a disclosure motion outright. We disagree with Appellants’ characterization of the authorities cited by the trial court.

In United States v. Crawford , Nos. 98CV743, 1999 WL 33921851 (N.D. Ohio Feb. 4, 1999), the Northern District of Ohio issued a limiting order directed at documents already in the plaintiff's possession. In discussing drug treatment records held by the facility, the court held:

It does not appear that the treating facility is even aware of the request. Consequently, due to the posture of this case, this Order applies only to

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