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Forthcoming Opinions – November 2, 2009

October 30, 2009

On Monday by 8:30 am, the Supreme Court of Georgia will release opinions in 18 cases, two of which are civil cases.  A brief summary of each civil case is below, and we will post links to the opinions when the opinions are released on Monday morning.


In this case, the surviving spouse (Mary Miller) attempted to obtain medical records from a nursing home related to her husband’s death. The nursing home refused, citing HIPAA. Because the decedent had no will, and Mrs. Miller had not sought appointment, she was not the representative of his estate. Mrs. Miller sued, seeking the medical records, and the trial court found in her favor.

The Court of Appeals (Phipps, Johnson, and Barnes) unanimously affirmed a trial court finding that a nursing care facility was required to provide a spouse copies of her deceased husband’s medical records, rejecting the facility’s reliance on the Health Insurance Portability and Accountability Act (“HIPAA”) to refuse to provide the records.

The two issues the Supreme Court will consider:

  1. Did the Court of Appeals err in holding that Georgia law authorizes a surviving spouse to act on behalf of the decedent in pursuing a wrongful death action, such that the surviving spouse would be entitled to access the decedent’s protected health information in accordance with 45 C.F.R. § 164.502 (g) of the HIPAA Privacy Rule?
  2. Did the Court of Appeals otherwise err in affirming the trial court’s award of injunctive and declaratory relief?

The Supreme Court heard oral argument on September 10, 2009, and an oral argument recap is posted on this site.

S09G0336. LOUIS LEVENSON, Admr. v. GERALD WORD et al.

This case involves a conversion action against a law firm.  After her husband was killed, Debra Post became the administrator of his estate.  Later that year, Debra was charged with the murder of her husband and hired Word & Simmons, P.C. to defend her.  She paid $125,000 for her defense.  After a period of time, Debra pleaded guilty to killing her husband, and the estate sought to recover the money paid by Debra to the law firm under a theory of conversion, claiming that because she was a “thief” and a “slayer,” she was unable to pass title to property owned by her husband under Georgia law.

The Court of Appeals (Ellington, Blackburn, and Miller) unanimously affirmed the trial court’s grant of summary judgment to the law firm, finding that the estate administrator had not shown the wife’s money was solely from the husband’s estate, and that even if this was true, the wife’s guilt was not established until well after the legal fees were paid.

The Supreme Court granted certiorari in a 4-3 vote on this one question:

  1. Did the Court of Appeals err by affirming the trial court’s grant of summary judgment in favor of Gerald Word, Maryellen Simmons, and Word & Simmons, P.C.?

The Court heard oral argument in the case on June 22, 2009.


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