Medical records can be used for offense. They can be used for defense. If a patient sues YOU for medical malpractice, all of their records are fair game (or at least most of their records). A plaintiff cannot use the medical record as both a sword and a shield.
What if a plaintiff is suing a defendant, and they are trying to ascertain if YOUR patient infected them with a sexually transmitted disease?
This was addressed in Moulton v. Goodell, decided by Georgia Appellate Cout June 17, 2025. (2025 WL 1691931).
Some background:
After their 13-year romantic relationship soured, Maggie Moulton sued William Goodell for various causes of action, including personal injury for transmission of genital herpes. Moulton moved to compel discovery related to Goodell’s medical records and for qualified protective orders related to the same. After denying in part the motion, the trial court granted a certificate of immediate review, and this Court granted Moulton’s application for interlocutory appeal of the trial court’s order. Moulton appeals, arguing that the trial court abused its discretion by denying her motions because the documents are within the scope of discovery and are not protected from discovery as found by the trial court. For the reasons that follow, we vacate in part and remand for further proceedings consistent with this opinion.
[T]he record shows that when she met Goodell, he initially did not tell her he was married. At some point, Goodell and Moulton engaged in sexual intercourse and began a 13- year relationship with several breakups, some periods of cohabitation, engagement, and financial support. During the relationship, Moulton at times broke off seeing Goodell because he had not pursued a divorce from his wife, but after assurances, Moulton would resume the relationship. Although Moulton contends that the couple were monogamous (or that she had been told as much by Goodell), Goodell contended that the pair were both dating other people during periods of the relationship.
Moulton alleged that the couple continued their relationship until she was diagnosed with genital herpes in 2023, at which point she confronted Goodell about his infection status. Thereafter, Moulton sued Goodell, alleging several causes of action, including negligent or intentional transmission of genital herpes. Goodell denied all the allegations related to the genital herpes claim, including allegations that were not related directly to Goodell.
Moulton first requested admissions, then interrogatories. Then medical records related to alleged herpes infection and treatment.
The trial court ruled for Goodell, noting a right to privacy in Georgia barred Moulton from discovering the requested information because Goodell had not placed his medical history into issue.
Moulton appealed.
The state ruled the information requested was relevant to discovery of an established claim, and not protected by any privilege. Discovery can be broad, even if evidence is later excluded for any number of reasons.
Under OCGA 9-11-26 (b) (1),
[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence[.]
“Privileged matters” are those that fall under OCGA § 24-5-501 (a) (1) through (9), including communications between spouses, between attorney and client, between accountant and client, between a litany of mental health care professionals and their clients, and among grand jurors; and well as secrets of state.
Interestingly, in Georgia, there is no general physician-patient privilege.
Georgia law has recognized causes of action for negligent or intentional transmission of the virus that causes genital herpes lesions. Thus, because Moulton has articulated a recognized claim for non-privileged information regarding Goodell’s medical records, the trial court should have issued orders narrowly tailoring the discovery to the necessary information.
Goodell argued that Georgia’s constitutional right to privacy prohibits discovery of this information because Goodell himself did not file suit putting at issue his medical history.
This is a misreading of Georgia law, however. While it is true that under both the federal and state constitutions, Georgians have a right to privacy in their medical records, this right is protected by the prohibition of disclosure of records without either consent of the subject or due process via a hearing at which the subject of the records has a right to object.
The law recognizes that the right of privacy is not absolute. [The right of privacy] must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern.
Because Goodell was provided due process and a right to object, and because Moulton needed these records for prove a legally recognized claim, she will be able to review the medical records, unless the case is appealed to and overruled by Georgia’s Supreme Court.
What is doctor-patient privilege? Note, it’s not the same as doctor-patient confidentiality.
The doctor-patient privilege is limited to legal proceedings. It is an actual bar to the physician producing records and giving testimony about matters related to the patient’s treatment and condition unless the patient agrees.
The patient holds the privilege – which means that the patient is the only one who can waive it – but in a legal proceeding either the doctor or the patient may assert it.
The communication with the doctor must also have been made in the expectation of privacy by the patient:
The communication must have been made in a way that only the doctor would see or hear. Therefore, speaking in an examination room while the door is open in a busy office or leaving a voicemail on a doctor’s home phone that other family members have access to would defeat the privilege.
The presence of a third person other than someone working directly as an agent of the doctor, such as a personal PA or a personal secretary, rather than just a member of hospital staff, or someone who is acting only as a needed facilitator for the communication, such as a sign language translator, breaches the privilege. It does not matter if the third person is even a spouse or parent of the patient – their mere presence ends any expectation by the patient that what was revealed will be just between themselves and the doctor.
Can a physician be made to testify about the medical record where he asserts physician-patient privilege? It depends upon the state. All states are different. And, in Georgia the answer here was that the records must be delivered.
What do you think?
