Medical privacy at risk in Georgia

Doctor-patient confidentiality is something we all rely on. The problem is, it’s not the law in Georgia.

If you go to the hospital after an allergic reaction to an illegal drug, or even someone else’s prescribed Vicodin, you have a choice: Tell the doctor what drug you took, and maybe go to jail, or keep that information to yourself and maybe die.

You see, police are allowed to get a search warrant for your private hospital records if they simply tell a part-time judge that they think you were DUI or guilty of possessing a controlled substance.

On Monday, the Georgia Supreme Court affirmed that Georgia law permits them to do so. In a unanimous decision, our highest court ruled that a law protecting “private papers” against search warrants covers only those papers in your possession and those that belong to you.

Since medical records at the hospital are usually not in your possession and don’t technically belong to you, they’re fair game.

The decision, named Brogdon v. State, resulted from the seizure of private hospital notes and test results by Gwinnett County authorities. Phillips Byrd Brogdon Jr. was a DUI suspect who was taken to Gwinnett Medical Center after being injured in a wreck.

During the course of his treatment he told his doctors, in confidence, that he drank a case of beer before driving. His doctor noted this admission, noted his opinion that Brogdon was severely intoxicated and ordered tests to confirm their opinions. Brogdon was arrested upon release from the hospital and charged with DUI.

Five months later, the prosecutor obtained a search warrant for his medical records, including all the incriminating doctors’ notes and test results. His lawyer objected to the use of the records against Brogdon because they were “private papers,” exempt from search warrants by law.

The local judge disagreed and Brogdon was convicted and sentenced to 11 months of work release jail.

There was plenty of evidence against Brogdon without using his private medical information against him: Witnesses saw him crash into a line of cars without braking, they described him as being in a drunken stupor, there were nine to 10 empty beer cans all over the truck and a strong odor of alcohol coming from his breath.

To clarify privacy laws, Brogdon’s lawyer, William Healan III, and I took the matter up on appeal. “Since the medical records that were the subject of the search warrant in the case at bar were neither the personal property of the appellant nor were they seized from his possession,” the Supreme Court ruled, “they did not constitute ‘private papers’ that are exempt from coverage of a search warrant in Georgia.”

While most people will be satisfied that justice was done in this case, the ruling leaves a lot of questions open: If we do something that might be illegal and get hurt or sick, is there any way to talk about it with a doctor in private?

If we don’t want the police to see our private medical records, do we now have to carry them around with us everywhere? What about computer records? Are they “papers” even though they are not printed out? What if we start using medical ID cards that allow access to records?

Healan and I will be busy arguing these constitutional issues for years to come unless the Legislature shows some leadership and enacts a strong doctor-patient privilege.

We already have an attorney-client privilege, a psychiatrist-patient privilege and even a veterinarian’s privilege; why shouldn’t we have an absolute right to private medical discussions?

David E. Clark is a Lawrenceville attorney.