A panel of the Georgia Court of Appeals has affirmed trial judges’ discretion to decline to allow medical malpractice defendants to privately interview plaintiffs’ treating physicians without getting the plaintiffs’ permission.

Two years ago, the state Supreme Court unanimously agreed that such informal interviews between med-mal defense lawyers and doctors who aren’t being sued could occur, so long as the lawyers received a court order that set certain parameters.

But that decision, Baker v. WellStar Health Systems, was somewhat unusual. In the court’s initial opinion, a majority of the court said such interviews were good policy because they cut down on litigation costs. Five months later, the court issued a new opinion in that case, backed by a different coalition of justices, saying that although such interviews were permissible, they were dangerous, and trial judges should fashion more restrictive orders.

In the case decided by the Court of Appeals on Nov. 16, then-Fulton County Superior Court Judge Michael Johnson refused the defendants’ request for a protective order that would allow them to interview those who had treated a woman whose family had filed a wrongful death suit over care she had received in an Atlanta-area assisted living facility. The appeals court panel said the proposal the defendants gave Johnson arguably wasn’t restrictive enough to comply with Baker.

The lawsuit stems from care that 88-year-old Francine Ehrlich received in the Court at Sandy Springs, an assisted living facility owned by Emeritus Corp., in 2008. The complaint alleges that in late August 2008, about a month or two after Ehrlich began living there, a nursing home employee noticed Ehrlich had a bedsore. After being treated in a hospital, Ehrlich returned to the nursing home and began receiving skilled nursing care from Tender Loving Health Care Services of Georgia.

The complaint says Ehrlich’s sore became larger and infected, and her mental and physical status declined. In late October or early November 2008, Ehrlich was admitted to another hospital for further treatment of her wound. She was discharged a few days later to receive hospice care at a family member’s home and died in mid-November 2008.

Her children sued both Emeritus and Tender Loving Health Care. Atlanta attorney Brantley Rowlen, who represents the owner of the assisted living facility, said he’d conducted little to no discovery but his client was confident both it and Tender Loving Care had met the applicable standards of care.

As part of their discovery efforts, the defendants sought to interview six of Ehrlich’s health care providers outside of formal depositions: four physicians who treated Ehrlich’s wound at Northside or Kennestone hospitals, and a physician and nurse practitioner who may have treated Ehrlich at the assisted living facility. None was a party to the suit or an agent or employee of one of the defendants, according to the appeals court ruling.

Under court rulings interpreting the federal Health Insurance Portability and Accountability Act of 1996, the defendants had to either obtain the plaintiffs’ permission or a court order before proceeding with the interviews. The plaintiffs refused to help, and the defendants asked Johnson for a protective order allowing the interviews.

The defendants’ proposal to Johnson limited the interviews to discussions of medical care Ehrlich received from Aug. 28, 2008 until her death, skin care related to bedsores and other skin breakdowns, and medical care for other conditions that could affect Ehrlich’s life expectancy. Among other things, the proposed protective order also said the medical provider would be told that the interview was for the purpose of helping the defense and the provider’s participation would be voluntary.

Johnson (who later was replaced on the case by Judge Todd Markle when Johnson left the bench to make an unsuccessful run for Congress) denied the request for the protective order, as well as the defendants’ alternative request that if they couldn’t conduct ex parte interviews, the plaintiffs’ lawyers shouldn’t be allowed to, either.

Amicus briefs filed in support of the defendants’ appeal by the Medical Association of Georgia, Georgia Hospital Association and Georgia Health Care Association, signaled the potential importance of the case, as did a competing brief filed by the Georgia Trial Lawyers Association. The brief filed jointly by GHA and GHCA contended the case was an example of how, even in the wake of Baker, some trial judges are reflexively denying protective orders that would allow ex parte interviews, without telling defendants what is wrong with their proposals. GTLA countered that the Georgia Supreme Court previously had said trial judges were well within their discretion to allow informal interviews of treating providers only if counsel for the plaintiff were present, and nothing in Baker created a right to private meetings.

At the appeals court, the defendants argued Johnson should be overruled in part because he violated their due process and equal protection rights by denying them a fair trial. Defense counsel argued that without being allowed to conduct the interviews, they wouldn’t be able to obtain the providers’ affidavits or prepare the providers for their trial testimony. That, they argued, would subject them to greater trial preparation expense and would make both the defendants and their witnesses look bad in front of the jury, especially in contrast with the well-prepared plaintiffs’ witnesses.

The panel of Chief Judge John Ellington and Judges Gary Andrews and Michael Boggs ruled for the plaintiffs. “Despite presenting such an impassioned argument outlining the potential dire consequences of an adverse ruling from this Court, however, the defendants have failed to support it with any evidentiary or legal authority, nor have they shown that these alleged consequences cannot be avoided by utilizing the other discovery methods and trial preparation techniques that remain available to them,” wrote Ellington. “Instead, this argument constitutes mere speculation and conjecture about possible future events that cannot fulfill their burden of demonstrating harm by the record.”

Noting that the potential for defense counsel to influence testimony was one of the dangers cited by the Supreme Court in the revised Baker decision, Ellington said the defendants hadn’t shown why they needed to prepare the providers for their testimony.

Besides rejecting the defendants’ constitutional arguments, the panel rejected the defendants’ suggestion that trial judges should typically grant a protective order allowing ex parte interviews and, when they are not granted, plaintiffs’ counsel should be equally restricted. That rule would conflict with Baker, wrote Ellington, which he said implicitly, if not explicitly, ruled that trial judges have discretion to deny a protective order even if it meets the “minimal legal requirements.”

Under Baker, wrote Ellington, Johnson was within his discretion in rejecting the proposed protective order. Baker said trial judges should limit defendants to discussing only the medical conditions at issue in the litigation, wrote Ellington. In contrast, he said, the defendants’ proposed order would have allowed them to question providers about all medical care Ehrlich received after she developed a bedsore, as well as any health problem she had ever had that might have affected her life expectancy.

Both Rowlen, who represents the assisted living facility’s owner, and Thomas “Ted” Lavender III, who represents the skilled nursing provider, said their clients were considering next steps. (Both lawyers are partners at Lewis Brisbois Bisgaard & Smith; Lavender explained that when the case started, he was with a different firm, and the partners since have put up an “ethical wall” between them. He said the plaintiffs have tried without success to have the defense lawyers removed from the case.)

Rowlen said he was disappointed in the outcome but pleased the Court of Appeals had dedicated more than 30 pages to the matter. “I think it’s a unique situation in civil litigation—it’s the only situation where one party is not permitted to go and conduct a witness interview,” said Rowlen, adding a lawyer can always go interview a witness to a car wreck, for instance.

Michael Prieto and Andrew Goldner have represented the plaintiffs in the case. They enlisted help on the appeal from Darren Summerville and S. Leighton Moore III, who recently opened a litigation boutique together.

Moore said the decision reaffirms that Georgia law guarantees a constitutional right to medical privacy. “It’s still important, and trial courts still have the discretion to protect it by declining to allow defendants to have ex parte interviews,” said Moore.

The case is Tender Loving Health Care Services of Georgia v. Ehrlich, No. A12A0892.