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While a traffic accident may occur entirely within one state, the insurance policies applicable to the vehicles and their owners may invoke the laws of two or more jurisdictions. This is why federal courts often handle personal injury lawsuits. Where there is “diversity” of jurisdiction between the parties—that is, the plaintiffs and defendants reside in different states—a federal court may hear the case.

However, state law still applies to personal injury lawsuits, even those tried before a federal judge and jury. That still may raise the question of which state law to apply in a given situation. Recently, a federal appeals court in Atlanta addressed just such a complex matter.

Travelers Property Casualty Company of America v. Moore

This unfortunate case began with a vehicle repossession. Two men, tow truck operators, went to an Atlanta home to repossess a Ford Mustang. The Mustang’s owner did not respond well. He brandished a sawed-off shotgun and proceeded to blow out one of the tow truck’s tires. The two tow truck operators immediately fled the scene. The shooter then proceeded to follow them in another vehicle, a van owned by the shooter’s employer.

During the ensuing chase, the shooter’s vehicle made contact with the tow truck and the shotgun, which was in the shooter’s hand, accidentally went off, killing one of the tow truck operators and seriously injuring the other. Police subsequently arrested the shooter, and a Georgia jury convicted him of felony murder and related offenses. The shooter is presently serving a life prison sentence.

The shooter was employed by a Rhode Island-based company that sold and serviced lottery machines in Georgia. The company provided the van for work-related purposes only. No personal use was permitted without company authorization. The van itself was insured by Travelers, which delivered the policy to the company’s headquarters in Rhode Island.

In anticipation of a lawsuit by the shooter’s victims, Travelers asked a federal court to declare it not responsible for the shooter’s actions pursuant to the employer’s commercial liability policy. A federal judge declined to do so, finding the shooter had his employer’s permission to use the van at the time of his rampage.

In adecision issued on August 14 of this year, a three-judge panel of the U.S. 11th Circuit Court of Appeals reversed the trial court ruling and entered judgment for Travelers. The panel said the “undisputed testimony” of the employer showed the shooter had no authorization to use the van for any personal reasons, especially for chasing the two men in the tow truck. No reasonable jury could therefore find the shooter an insured person under the Travelers policy.

The 11th Circuit also clarified that, although this case arose from an incident in Georgia, under Georgia law an insurance contract is interpreted according to the state where the policy is delivered, in this case, Rhode Island. While Rhode Island law states the registered owner of a vehicle is presumptively liable for an accident caused by an employee-driver, that presumption does not extend to an a third party who merely insures the vehicle.

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In any personal injury lawsuit, it is critical the parties to the case preserve any relevant evidence. A court may sanction either side if there is destruction or “spoliation” of evidence. A recent decision by a federal judge in Macon offers an example of these sanctions in practice.

Little v. McClure

This is an ongoing personal injury lawsuit arising from a motor vehicle accident. In February 2012, a tractor trailer collided with another vehicle at the intersection of Interstate 76 and Interstate 75 in Macon. The tractor trailer driver is the defendant. The plaintiffs allege he was negligent because he was distracted by talking on his cellular phone at the point of the accident.

The defendant denied this. He said in a pretrial deposition he was using a hands-free device and ended his call about 90 seconds before the accident. The plaintiffs produced cellphone records contradicting this. The defendant responded he was having difficulty with his hands-free device and it may have failed to disconnect immediately even though his conversation ended.

The plaintiffs, naturally, wanted to examine the hands-free device to verify the defendant’s claim. Unfortunately, the defendant said he returned the device to the manufacturer a few weeks after the accident, so it could not be made available to the plaintiffs. The plaintiffs went to the judge, arguing this amounted to a spoliation of evidence.

The judge agreed. In a decision issued on July 31 of this year, U.S. District Judge Marc T. Treadwell said the defendant failed to preserve evidence as normally required by Georgia and federal law. As is standard practice in personal injury cases, counsel for both the plaintiffs and the defense informed their clients about the need to preserve evidence shortly after it became clear there would be litigation. Nevertheless, Judge Treadwell said, the defendant “returned his hands free device to the manufacturer approximately two months after the spoliation letters were received.” This could not be excused as an accident or oversight, the judge said, as the letters specifically informed the defendant of the need to preserve “all evidence related to this accident.” Judge Treadwell said “it would defy common sense” for the driver, his employer and their attorneys not to recognize the absolute need to preserve the hands-free device as a crucial piece of evidence.

The defendant’s case rests on his testimony that the malfunction of the hands-free device led to an error in the cellphone records that show he was using his phone when the accident occurred. The defendant’s subsequent spoliation now prevents the plaintiffs from cross-examining that evidence. Accordingly, Judge Treadwell said sanctions are necessary to overcome the prejudice to the plaintiffs’ case. Given the circumstances, Judge Treadwell said he would instruct the jury to draw an “adverse inference” that the defendant destroyed evidence “in bad faith.” This will seriously compromise the defense’s ability to argue the cellphone records were erroneous.

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Expert testimony is a critical element of medical negligence cases. The United States Supreme Court has charged trial judges with serving as “gatekeepers” who must screen out “speculative, unreliable expert testimony” before it even reaches a jury. But that does not mean judges enjoy unlimited discretion to decide which experts to admit. A federal appeals court in Atlanta recently chided a district judge for improperly excluding a plaintiff’s expert witness in a Georgia negligence case. The appeals court also rejected an attempt by the medical industry to dictate its own standards of expert witness reliability to the courts.

Adams v. Laboratory Corporation of America

The plaintiff in this case suffered from cervical cancer. She received several Pap smear tests, but the laboratory that analyzed the results failed to discover the cancer before it had spread to the plaintiff’s lymph nodes. The plaintiff then sued the laboratory for negligence.

The plaintiff presented an expert witness, Dr. Dorothy Rosenthal, a pathologist at Johns Hopkins University who has more than 40 years experience in training and supervising laboratory technicians. Dr. Rosenthal reviewed the plaintiff’s original test results and concluded the lab “fell short of the applicable standard of care” in diagnosing the plaintiff.

The laboratory moved to exclude Dr. Rosenthal’s testimony. It argued her methodology was unreliable. The trial judge agreed and granted summary judgment to the laboratory.

The 11th U.S. Circuit Court of Appeals reversed the trial court in an opinion issued on July 29th of this year. The appeals court said the trial judge’s conclusion regarding Dr. Rosenthal’s credibility was “manifestly erroneous.” The trial judge asserted Dr. Rosenthal’s methodology could not be replicated by other experts. The appeals court said just the opposite was true; indeed, the laboratory’s expert used the exact same methodology, albeit to reach a different conclusion.

The appeals court also rejected the trial judge’s view that Dr. Rosenthal’s methodology did not meet the guidelines proposed by the College of American Pathologists and the American Society of Cytopathology. These guidelines purport to advise courts on how to adjudicate negligence claims against its members. As the 11th Circuit noted, these guidelines have nothing to do with the a standard of care a patient receives; rather, they are “policy proposals to limit how the courts can find the members of the organizations liable for professional negligence when they are sued.” The 11th Circuit emphatically states private interest groups should not be allowed to set evidentiary standards.

Finally, the 11th Circuit said the trial judge could not exclude Dr. Rosenthal’s testimony simply because she might have a bias towards plaintiffs in negligence cases. While bias may be an issue, it is a question for a jury to weigh and decide. A trial judge must not usurp the jury’s legitimate fact-finding role in this respect.

One judge on the 11th Circuit panel, Emilio M. Garza, wrote separately to state he did not think Dr. Rosenthal’s “methodology” should play a role in this case. Judge Garza said neither Dr. Rosenthal nor the laboratory employed any clearly defined methodology, but instead “they simply drew upon their knowledge” in assessing the plaintiff’s Pap smears. As far as Judge Garza was concerned, that means Dr. Rosenthal’s testimony is admissible so long as she is competent, which the laboratory never disputed.

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On July 16, a fractured Georgia Court of Appeals held a plaintiff could seek damages for emotional distress arising from a truck accident. Although Georgia law generally does not allow damages for “negligent infliction of emotional distress,” there is an exception for a “pecuniary loss” arising from physical injury. In this case, the appeals court judges disagreed over whether this pecuniary loss rule covered the circumstances alleged by the plaintiff.

Oliver v. McDade

The plaintiff and several others were returning home from a dirt race in a truck owned by the plaintiff and driven by one of his friends. The truck was towing the plaintiff’s race car. Somewhere on I-16 in Dublin, they stopped to check the trailer hitch. At that moment, a tractor trailer swerved onto the shoulder and hit the plaintiff’s truck and trailer. The plaintiff’s friend was crushed and killed immediately. The plaintiff suffered a number of physical injuries. He was subsequently diagnosed with a number of emotional injuries, including depression, insomnia, anxiety and suicidal thoughts.

The plaintiff sued the driver, owner and insurer of the tractor trailer. The defendants asked the trial judge for summary judgment of the plaintiff’s claim for damages arising from emotional distress. The defense maintained the plaintiff’s emotional injuries arose, at least in part, from witnessing his friend’s death, which is not recoverable under Georgia law. The judge denied the defendants’ motion but allowed them to immediately appeal his decision to the Court of Appeals.

A full nine-judge court heard the case. Eight judges voted to affirm the trial judge’s decision, meaning the plaintiff’s emotional distress case can proceed. The majority produced three separate opinions, however. Presiding Judge Sara L. Doyle delivered the principal judgment, which was only joined in full by Judge William M. Ray, II. Judge Doyle said it was clear from the evidence presented so far that all of the plaintiff’s alleged emotional injuries arose from the physical injuries suffered in the accident. But, Judge Doyle added, even if some of the plaintiff’s emotional injuries arose from witnessing his friend’s death, he might still recover from the defendants under the pecuniary loss rule so long as the plaintiff also suffered some physical injury.

Judge Christopher J. McFadden wrote the second opinion. He agreed with Judge Doyle’s conclusions but disagreed with some of her footnotes. He added that under the pecuniary loss rule, the plaintiff could recover for the “serious emotional distress of witnessing his close friend’s suffering and death without regard to whether the emotional trauma arises out of a physical injury.”

Judge Michael P. Boggs wrote the third opinion. He agreed with Judge Doyle that nothing in the evidence presented so far suggests the plaintiff’s emotional trauma arose from anything other than his physical injuries. Judge Boggs disagreed with Judge McFadden’s view that this was a case where the pecuniary loss rule applied.

Presiding Judge Gary Blaylock Andrews wrote the only outright dissenting opinion. He accused Judge Doyle and Judge McFadden of creating an “unprecedented and unauthorized expansion of the pecuniary loss rule.” He said the plaintiff should not be allowed to pursue any damages under the pecuniary loss rule.

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The Supreme Court of Georgia issued an important decision on July 11 that will make it easier for accident victims to pursue uninsured motorist claims against their insurance carriers. The Supreme Court, reversing a 2013 decision by the Georgia Court of Appeals, said a plaintiff could allocate part of a settlement with the defendant’s insurance carrier to punitive damages while retaining the right to pursue an uninsured motorist claim for compensatory damages. Georgia law does not permit recovery of punitive damages under an uninsured motorist policy.

Carter v. Progressive Mountain Insurance

This case began with a February 2010 two-vehicle accident. One driver sued the other for negligence. The plaintiff alleged the defendant was driving under the influence of alcohol at the time of the accident. The defendant had an insurance policy limited to $30,000 in liability coverage. The plaintiff had her own uninsured motorist policy with Progressive Mountain Insurance.

The plaintiff eventually signed a limited release with the defendant’s insurer. In exchange for accepting the the coverage limit of $30,000, she agreed to allocate $29,000 of that amount to punitive damages and only $1,000 to compensatory damages. The plaintiff would then pursue an uninsured motorist claim with Progressive for any additional compensatory damages.

Progressive challenged this condition as a violation of Georgia law. The trial court agreed and granted summary judgment to Progressive. Last year, the Georgia Court of Appeals upheld this decision. The appeals court said the plaintiff could not pursue uninsured motorist benefits until she first “exhausted” the liability limits of the defendant’s insurance policy. In that sense, the court said the plaintiff’s agreement with the defendant’s insurer to allocate most of the liability coverage to punitive damages “frustrates” the law’s objectives by unfairly burdening the uninsured motorist carrier with paying more in compensatory damages.

The Georgia Supreme Court disagreed. Presiding Justice P. Harris Hines, writing for a unanimous Court, said the Court of Appeals’ objections were “ill-founded.” Georgia law does not bar a plaintiff and an defendant’s insurer from allocating a portion of liability coverage to punitive damages, Justice Hines explained. The law only addresses the conditions by which an insurer may be released from further liability. Furthermore, the law actually prevents the type of burden-shifting the Court of Appeals objected to, because in this case, any compensatory damage award to the plaintiff must be offset by the $30,000 previously received from the defendant’s insurer—regardless of the fact some of that liability was directed to punitive damages. Ultimately, Justice Hines said, the plaintiff’s “combined recovery will not exceed [her] economic and noneconomic losses.”

 

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If you are in an accident, and you sue the other driver for negligence, can the other driver turn around and argue your employer—who is not a party to the lawsuit—was partially to blame for letting you drive its car? That was the unusual question presented to the Georgia Court of Appeals. In a decision issued on July 16, a seven-judge panel of the Court rejected what it dubbed a “creative argument” by a defendant trying to mitigate her own potential liability.

Zaldivar v. Prickett

In 2009, two vehicles collided at an intersection. Although both drivers suffered injuries, only one driver sued the other for negligence. The other did not file a counterclaim.

Both drivers maintain the other caused the accident. The plaintiff was driving a car owned by his employer. The defendant driver argued, as an affirmative defense, the employer was “wholly or partially at fault for negligently entrusting” one of its vehicles to the plaintiff, who had “received three anonymous calls from people complaining about how [the plaintiff] had been driving.” The plaintiff asked the trial court for summary judgment on this point, and the judge agreed. The defendant then appealed.

Under Georgia law, a court must apportion damages for negligence based on the relative fault of all responsible parties, even persons or entities who are not parties to the actual lawsuit. Here, the defendant argued the plaintiff’s employer was partially responsible for the injuries suffered by the plaintiff. The Court of Appeals was unwilling to accept this as a valid outcome under Georgia tort law.

Presiding Judge Anne Elizabeth Barnes, writing for the majority of the Court, said even if the plaintiff “were determined to be negligent and partially responsible for his own injuries, his own negligence would break the causal connection between any negligent act of his employer [] in entrusting a vehicle to him.” A court may only apportion liability to a non-party if it “contributes” to the plaintiff’s injuries. As Judge Barnes explained, while the employer’s alleged negligent entrustment may have contributed to the defendant’s injuries—and remember, she did not file a claim for damages—it cannot contribute to the plaintiff’s injuries.

One judge disagreed. Judge Elizabeth L. Branch filed a dissenting opinion. She argued it made no sense that the plaintiff could assign partial liability to his employer but the defendant could not. After all, Judge Branch said, both parties “injuries resulted from the same accident.” She said Georgia law was only concerned with assigning “fault” for the accident rather than liability for the plaintiff’s injuries. The issue is not whether the plaintiff could sue his own employer for giving him a vehicle; the issue is whether the employer’s negligence contributed to the accident.

The majority’s position is now the law, however, and Judge Barnes made it clear a defendant cannot seek to apportion any blame for an accident on the plaintiff’s employer. Keep in mind, the appeals court has not decided the merits of the plaintiff’s lawsuit, as the case now continues before a trial court.

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Under Georgia law, the owner of a premises is liable for any injuries arising from a failure to “exercise ordinary care” in keeping said premises safe. A recent decision from the Georgia Court of Appeals illustrates how this duty is applied in “slip-and-fall” cases where there is an alleged hazard the owner failed to warn invited persons about.

Henderson v. St. Paul Baptist Church

The plaintiffs in this case were two visiting pastors, a husband and wife, invited to speak at a church in Clinch County. The church did not have a designated parking lot, so the local pastor directed the plaintiffs to park behind his own car on the left side of the building. The plaintiffs parked their car as directed, behind their host’s car and near some some shrubbery. One of the plaintiffs, the wife, later exited the car and walked towards the church’s front entrance. She walked through the ground near the shrubbery, which was covered in pine straw. Assuming it was safe, she stepped over the pine straw, which was in fact covering a hole. She fell into the hole and broke her leg.

The plaintiffs sued the church for premises liability. The church’s pastor admitted he was aware of the hole, which had been dug when the shrubbery had been planted about a month before the plaintiff’s accident. The pastor also acknowledged this hole was not visible or marked in any way. He conceded there was no way the plaintiffs could have known the hole was there.

Nevertheless, the church moved for summary judgment, arguing the plaintiff was responsible for the accident. The trial court agreed. The court accepted evidence the plaintiff took a “shortcut” through the shrubbery to get to the church’s entrance rather than using the designated path.

The Court of Appeals reversed the trial court on the summary judgment question. The appeals court said there were still disputed questions of fact to be resolved at trial. Specifically, the plaintiff presented evidence “that at the time of her fall the entire area between her car and the bushes was covered with pine straw, leaving her with no choice of whether to walk on the pine straw to get to the church entrance from the parking spot.” The appeals court also pointed to the plaintiff’s testimony that it was the defendant’s pastor who invited them to park next to the shrubs, contradicting the notion the plaintiff negligently chose to deviate from the designated path.

As is always the case with summary judgment, the Court of Appeals did not rule for the plaintiff on the merits. The court is required to reconsider the trial court’s decision on summary judgment in the light most favorable to the plaintiff. Here, the Court of Appeals simply found a factual dispute remained, which requires a trial before a jury. The jury could still ultimately find it was the plaintiff’s negligence, rather than the defendant’s failure to warn, that was responsible for her injuries.

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On July 10, the Georgia Court of Appeals ruled a lawsuit against the state’s Department of Transportation (DOT) could go forward. The lawsuit arose from a deadly accident at a recently redesigned road in Atlanta. The DOT argued it could not be held liable under the doctrine of “sovereign immunity,” but the appeals court said some of the plaintiff’s claims could still proceed.

Department of Transportation v. Kovalcik

In 2006, the DOT and the City of Atlanta agreed to renovate a section of Peachtree Road. The City hired a company to develop construction plans for the road, while the DOT awarded construction contracts. Construction took place in 2006 and 2007. The DOT conducted a final inspection of the road in January 2008.

Two months after that inspection, a car traveling southbound on the newly rebuilt Peachtree Road made what the driver thought was a turn into an intersection. Instead, the driver actually turned into a shorter lane marked by a concrete divider. The car struck the divider, killing the driver’s passenger.

The passenger’s parents and estate sued the DOT and the City of Atlanta, among other parties, for wrongful death. The plaintiffs alleged the DOT failed to ensure the safety of Peachtree Road and was negligent in the roadway’s redesign. The DOT argued these claims were barred by sovereign immunity. The trial judge rejected this argument and the DOT appealed.

A three-judge panel of the Court of Appeals agreed with the trial judge that the “negligent design” complaint could proceed to trial. Presiding Judge Sara L. Doyle, writing for the panel, said the Georgia legislature waived sovereign immunity with respect to claims arising from “property owned by the state,” which includes Peachtree Road. The DOT attempted to argue the plaintiffs’ negligent design theory arose from the defective construction plans—which were “owned” by the City and its contractor, not the state—but as Judge Doyle explained, that is not a “meaningful distinction.” Ultimately, the DOT was responsible for “both approving construction plans and inspecting the physical property for compliance with DOT standards as built in accordance with those plans.”

The appeals court agreed with the DOT, however, that the plaintiffs could not pursue a claim against the DOT for “negligent approval of defective construction plans.” This is because sovereign immunity bars any claim against the state arising from the exercise of “licensing” powers, which includes granting permits or approving plans. But the plaintiffs may still argue “negligent inspection” despite the DOT’s protest it should not be liable for the work of the independent contractors who built the road. Judge Doyle said “the mere presence of contractors performing services on behalf of the DOT does not relieve DOT from potential liability for its own actions.”

The Court of Appeals did not rule on the merits of any of the plaintiff’s claims. The appeal was confined to the jurisdictional question of whether sovereign immunity barred any or all of the plaintiff’s claims. The case now returns to a trial court for further proceedings.

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Under Georgia law, an emergency room doctor (or other emergency health care provider) is not liable for malpractice unless there is “clear and convincing evidence” of “gross negligence.” This rule only applies when a patient is treated in “an emergency department” or taken to surgery from an emergency department. But what constitutes the “emergency department” of a hospital? The Georgia Court of Appeals recently clarified this issue.

Nisbet v. Davis

The Court of Appeals reviewed a trial judge’s denial of summary judgment to a physician at Gwinnett Medical Center in Lawrenceville. The plaintiff is the surviving spouse of a woman who died while under the physician’s care. The deceased had undergone surgery at another hospital in 2009 where the surgeon accidentally perforated her bowel twice. The next day, the woman complained of breathing problems, and she went to the Gwinnett Medical Center’s emergency department for treatment.

The defendant physician was not an attending physician in the emergency department, but rather a pulmonary specialist who served as a “consultant” to the department. The specialist examined the woman but did not request a surgical consult, which likely would have discovered the perforated bowel from the previous day’s surgery. Instead, the specialist ordered the woman be moved to intensive care. The doctor did not follow up on this order, however, and the woman remained in the emergency room for several hours. Although emergency room staff maintained contact with the physician, she did not return to the hospital until the next morning. At that point—approximately 10 hours after her initial examination—the doctor finally requested a surgical consult.

The surgeon quickly discovered the perforated bowel, but by then it was too late. Despite emergency surgery, the woman died. The surviving spouse filed a wrongful death lawsuit against the physician, alleging her failure to immediately order a surgical consult led to his wife’s death.

Before the trial court, the doctor moved for summary judgment, citing immunity under Georgia’s emergency care law. The judge denied the motion, holding it did not apply in this situation. The judge said the physician worked for the critical care (ICU) department rather than the emergency department. Furthermore, there were disputed issues of fact as to whether the physician’s conduct constituted “ordinary negligence” under Georgia law. Summary judgment was therefore inappropriate.

The defendant appealed the denial of summary judgment. The Court of Appeals affirmed the trial court’s decision to deny summary judgment, but not its reasons. Critically, the appeals court said the emergency room law applies in this case because, regardless of what department the defendant worked for, the deceased received treatment in the emergency room. The appeals court said that in writing the law, the Georgia legislature clearly intended for it to apply to all treatment received within the physical confines of a hospital’s emergency room or department.

That said, the appeals court agreed with the trial judge there were still material issues of fact that needed to be resolved by a jury. But, since the emergency room law applies, there will now be a higher burden on the plaintiff to prove the defendant’s conduct amounted to “gross” rather than “ordinary” negligence.

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Georgia law declares “communications between [a] psychiatrist and patient” privileged and therefore excluded as evidence in a civil proceeding. But what happens when the patient is deceased and his heirs have reason to believe the psychiatrist may be responsible? A divided Georgia Supreme Court recently addressed that question.

Cooksey v. Landry

A young man committed suicide in 2012. He had been under a psychiatrist’s care for many years. A month before the man’s death, the psychiatrist prescribed two common antidepressant drugs. These drugs carried what is known as a “Black Box Warning,” which is the strongest warning the Food and Drug Administration may require for a legal product. The FDA cautioned that use of these two drugs can lead to “an increased risk of suicidal thinking and behavior in young adults.”

Following his death, the man’s father was named administrator of his estate. Both of his parents then started looking into a possible cause of action against the psychiatrist for malpractice and wrongful death. But in order to bring a malpractice claim in Georgia, a medical expert must sign an affidavit describing that “at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

The only way an expert could ascertain the “factual basis” for a malpractice claim would be to examine the deceased man’s psychiatric records. Accordingly, the parents asked a Georgia trial judge to issue an injunction requiring the psychiatrist to turn over their son’s records. The judge agreed and issued the injunction. The psychiatrist appealed.

By a vote of 5-2, the Georgia Supreme Court reversed the trial judge’s order. Chief Justice Hugh P. Thompson, writing for the majority, said, “unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient.” Only the patient can waive the privilege. The Georgia legislature further emphasized this when it exempted psychiatric records from laws permitting disclosure of other health records to the personal representative of a deceased individual’s estate.

Justice Robert Benham, in a dissenting opinion joined by Justice Carol W. Hunstein, argued despite the law, “this Court should hold as a matter of public policy” that the father, acting as his son’s administrator, should have the authority to waive privilege in order to assert a possible claim against the psychiatrist whose conduct may have contributed to his death. The purpose of the privilege, Justice Benham said, “is to protect the patient, along with the public interest in promoting mental health care, not the doctor.”

But as the Chief Justice explained in the majority opinion, the psychiatrist cannot assert any privilege, only the patient. And as far as Georgia law is concerned, if the patient dies without waiving his privilege, the courts cannot assign it to his estate or heirs. In this case, the parents have no right under the law to access their son’s psychiatric records—even if it is to prove his psychiatrist may be liable for his death. Unfortunately, as Justice Benham noted in his dissent, this means a patient’s death deprives him (or his estate) of any ability to pursue a psychiatrist whose treatment clearly failed.