WellStar, physician win ruling in lawsuit
by Lindsay Field
May 21, 2013 12:13 AM | 6095 views | 1 1 comments | 11 11 recommendations | email to a friend | print
MARIETTA — The Georgia Supreme Court has ruled in favor of WellStar and one of its local doctors and against a Newnan man who lost his wife to ovarian cancer in 2010. At issue was a dispute over whether the plaintiff was entitled to the transcript of an interview between a WellStar attorney and doctors.

In May 2010, WellStar and OB/GYN Dr. James Sutherland were the targets of a lawsuit filed by James Jordan, husband of the late Marilyn Kay Adams Jordan.

In his medical malpractice suit, Jordan claims that his wife’s fallopian tubes and ovaries should have been removed when Sutherland performed a hysterectomy on her in 2006.

His attorney, Tommy Malone of Atlanta, claimed that 63-year-old Marilyn Jordan had an increased risk of ovarian cancer for many reasons, including her family history.

During a series of hearings leading up to the originally scheduled June 2012 court date before Cobb County State Court Judge Carl Bowers, a dispute arose over possible evidence in the case.

Malone was asking for copies of the interviews between WellStar’s attorney, Henry Green Jr., and Marilyn Jordan’s doctors.

Green refused to turn over the transcripts, saying the information was confidential and considered “work product,” which is the material prepared by an attorney in preparation for litigation — “and turning them over would provide full knowledge of his defense strategy to opposing counsel.”

Judge Bowers did not consider the transcripts to be “work product” and told WellStar to turn them over to Jordan’s attorney.

WellStar appealed to the Georgia Court of Appeals but was denied. WellStar then appealed to the state Supreme Court, where justices unanimously overruled Bowers and sent the case back to Cobb State Court for further proceedings.

The plaintiff’s attorney had based his argument on the premise that HIPAA, or the Health Insurance Portability and Accountability Act, required the hospital to turn over the transcripts, which he considered part of the patient’s records.

“We cannot agree with Jordan’s interpretation of HIPAA,” states the opinion written by Supreme Court Justice Hugh Thompson. “Although HIPAA grants an individual the right to access his or her health information that is in the possession of a covered entity, there are limits to the scope of this right of access.”

The court also rejected Jordan’s argument that Bowers’ “qualified protective order” requires WellStar to produce the transcripts. The hospital group’s attorney filed this motion so that their attorneys could interview Marilyn Jordan’s doctors without first notifying James Jordan’s attorney so he could be present.

Lastly, the opinion by Thompson states that Bowers’ ruling that the interviews were not “work product” and protected by law was incorrect.

“We have no difficulty concluding this ruling was erroneous,” the opinion states.

In this case “the transcripts of non-party interviews conducted by WellStar in the preparation of its defense clearly constitute attorney work product.”

Green was unavailable for comment Monday but Malone said, “It seems to me to be a clear message to the trial lawyers of this state and trial judges that nothing is to be inferred and everything should be explicit.”

He declined to comment further on the ruling until he’d had an opportunity to fully review the high court’s opinion.

Malone did say that the damages his client is seeking would be the “full value” of Marilyn Jordan’s life, which would be determined by a jury. A new trial date has not been set.
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December 17, 2014
Looking at the short judicial history of Cobb County Judge Carl Bowers seems to reveal that in many cases, he does not have a firm grasp of the meaning of the 5th amendment. Perhaps a refresher course might be in order, in order that he is not overturned on this issue.
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