IN THE SUPREME COURT STATE OF GEORGIA. Petitioners, Petition No. S12C1629 AMICUS CURIAE BRIEF OF GEORGIA HOSPITAL ASSOCIATION

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1 WELLSTAR HEALTH SYSTEM, INC. and JAMES A. SUTHERLAND, M.D., IN THE SUPREME COURT STATE OF GEORGIA v. Petitioners, Petition No. S12C1629 JAMES B. JORDAN, as Surviving Spouse, and as Executor of the Estate of MARILYN KAY ADAMS JORDAN, Georgia Court of Appeals No. A12I0245 Respondent. AMICUS CURIAE BRIEF OF GEORGIA HOSPITAL ASSOCIATION Jason E. Bring Georgia Bar No ARNALL GOLDEN GREGORY LLP th Street NW, Suite 2100 Atlanta, Georgia T: (404) F: (404) Attorneys For Amicus Curiae Georgia Hospital Association

2 The Georgia Hospital Association (GHA) submits this amicus curiae brief in support of the Petition for Certiorari, asking the Court to provide clarification on ex parte physician interviews in order to maintain a level playing field between plaintiffs and defendants in medical malpractice litigation. At the heart of this appeal is the sanctity of the work product doctrine, which recognizes that it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. McKinnon v. Smock, 264 Ga. 375, 377 (1994) (quoting Hickman v. Taylor, 329 U.S. 495, (1947)). The work product doctrine thus provides discovery immunity for materials collected or prepared in anticipation of litigation and to the mental impressions, conclusions, opinions, or legal theories of an attorney. O.C.G.A (b) (3). To preserve and protect the work product doctrine and to provide guidance to hospitals and other litigants regarding the interplay between the doctrine and the federal Health Insurance Portability and Accountability Act (HIPAA) privacy regulations, GHA respectfully requests that this Court accept the Petition for Certiorari and reverse the trial court s Order. 1 1 Even the Respondent, in his brief, recognizes the need for direction from this Court, stating: [I]t is understandable if the Court grants review on certiorari to preemptively preclude future appeals on this issue, and to give guidance. (Resp. Br., p. 10.)

3 I. INTRODUCTION In the underlying litigation, WellStar s defense counsel obtained a Qualified Protective Order ( QPO ), drafted in accordance with Baker v. WellStar Health Systems, Inc., 288 Ga. 336 (2010), to conduct ex parte interviews of the decedent s medical providers, while maintaining the privacy of that information in accordance with HIPAA. (See Pet. For Cert., Ex. 3.) Having properly obtained the QPO, defense counsel then conducted the ex parte interviews, which were taken down by a court reporter per the trial court s direction. Thereafter, although enjoying the opportunity to interview those same providers themselves, plaintiff s counsel instead sought copies of the transcripts of defense counsel s interviews. Without any review or redaction of the transcripts to protect defense counsel s work product, and without any determination that the interviews improperly strayed beyond the case, the trial court ordered the transcripts to be produced to plaintiff. The trial court s order, if allowed to stand, would tip the scales of justice heavily in favor of plaintiffs in liability cases, and would place hospitals at an unfair disadvantage in litigation. In Baker, this Court recognized Georgia s longstanding allowance of ex parte communications between defense counsel and treating providers, and it authorized the continuation of those communications post-hipaa. The Baker Court instructed trial courts to enter QPOs in order to protect the health information of patients, while allowing defendants access to that

4 information in litigation. See Baker, 288 Ga. 336 (2010). In doing so, the Court expressed its concern about a potential for defense counsel to explore extraneous issues, and it therefore required that QPOs be fashioned so that ex parte interviews are limited to matters relevant to the medical condition [the patient] has placed at issue in this proceeding. Id. at 338. In addition, the Baker Court also authorized trial courts to require that the interviews be transcribed, but only when special circumstances exist such as evidence indicating that ex parte interviews have or are expected to stray beyond their proper bounds. Id. at 340. Although not expressly stated in Baker, the only reasonable purpose of requiring transcripts as an exception rather than the rule was to provide a means for the trial court to ensure that defense counsel did not stray beyond their proper bounds and inquire about medical conditions other than those placed at issue in the proceeding. This trust-but-verify system makes sense, especially when there is already an evidentiary basis for the trial court to conclude that the interviews could potentially stray beyond the proper bounds. However, in order to maintain the equally important work product privileges associated with defense counsel interviews, it must be the trial courts not plaintiffs counsel that determine through in camera review whether the interviewer improperly strayed. And it is only when there is a reasonable belief that someone had strayed outside the bounds that such an in camera review would be needed

5 GHA and its members respect the Baker decision, and they embrace the privacy rights of patients. Utilizing QPOs to allow litigation interviews while protecting patients privacy interests strikes a proper balance of those competing interests. However, if transcripts of those interviews are required to be produced to opposing counsel, then the balance will become severely skewed against hospitals. Unlike defense counsel, plaintiff attorneys enjoy the unfettered ability to interview treating physicians. No QPO is required, and neither is a court reporter. While defense counsel can and do conduct interviews under QPOs, a requirement (or even a threat) that their interviews be turned over to the plaintiffs is the equivalent of stripping hospitals of the right to ex parte interviews altogether. In order to maintain our system of justice and to ensure a level playing field with work product protections for both sides, it is essential that hospitals have the same tools for defending their cases as the plaintiffs do for prosecuting theirs. The trial court s order, however, dramatically changes that balance, and GHA therefore requests that this Court not only reverse the trial court s order in this case, but also provide guidance to all trial courts and litigants as to the proper purpose and use of ex parte interview transcripts. II. IDENTITY AND INTEREST OF AMICUS CURIAE The GHA is a not-for-profit trade association made up of member health systems, hospitals, and individuals in administrative and decision-making positions

6 within those institutions. Established in 1929, GHA serves over one-hundred and seventy hospitals in Georgia. Its purpose is to promote the health and welfare of the public through the development of better hospital care for all of Georgia s citizens. GHA members are committed to improving institutional health services and, in turn, patient care. In addition, GHA member hospitals employee tens of thousands of physicians and other health care providers across the state. Therefore, GHA has an abiding interest in both laws that govern the release of patient information by health care providers and in laws that guide medical malpractice actions. The trial court s Order undermines the delicate balance this Court struck in Baker between the privacy rights in patient information and the legitimate right for health care providers to maintain the same litigation tools available to Plaintiffs in medical malpractice cases. The trial court s Order will further restrict informal contact between defense counsel and health care providers who are relevant to a medical malpractice action. Furthermore, this will result in unnecessary litigation costs and will increase the amount of time that treating physicians will be required to remove themselves from their medical practices. For example, instead of investigating through a fifteen-minute telephone call, defense counsel may have no choice but to depose the physician, requiring that the physician miss hours or even a day of practicing medicine. GHA s members employ thousands of physicians who are already in

7 scarce supply. The prospect of consuming countless hours of those physicians time on unnecessary depositions is not only a costly prospect for GHA s hospitals, but it is also a costly prospect for patient care. III. QUESTION PRESENTED Whether the trial court erred in its conclusion that transcripts of ex parte witness interviews between defense counsel and health care providers taken pursuant to a Baker-compliant QPO must be turned over to Plaintiff s counsel, notwithstanding attorney work product protections designed to immunize from discovery the mental impressions and theories of counsel. IV. ARGUMENT AND CITATION OF AUTHORITY A. The Trial Court Erred In Ruling That Transcripts Of Defense Counsel s Ex Parte Interviews With The Decedent s Health Care Providers Were Not Work Product. The work product protection is broader in scope and reach than even the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 238 n.11 (1975); see also O.C.G.A (b) (3). [T]he showing required for discovering any portion of the attorney s work product is of a higher order than that of good cause required in other instances. That showing should be such as to lead the court to a conclusion that it is only by allowing discovery that a manifest injustice can be averted or an intolerable hardship prevented. Atl. C. L. R. Co. v. Daugherty,

8 Ga. App. 144, 158 (1965). Therefore, discovery of an attorney s work product is improper, except under certain very limited circumstances. See id. In this case, the QPO was drafted in strict compliance with Baker and permitted the Defendants counsel to engage in ex parte communications with designated health care providers. (Pet. For Cert., Ex. 3, p. 1.) In no way did the QPO purport to remove the resulting transcripts from the gamut of the work product protection. (See id.) By definition, ex parte means by or for one party; done for, in behalf of, or on the application of, one party only. Black s Law Dictionary (6th Ed. 1991). It was within the trial court s discretion to include additional procedural safeguards in the QPO, such as affording Plaintiff the opportunity to be present during the interviews, if evidence showed that circumstances warranted them. Baker, 288 Ga. at The trial court, however, found that no such circumstances existed and afforded defense counsel the right to uninhibited ex parte interviews of the decedent s treating medical providers. The trial court gave no indication that the ex parte interviews were to be used for anything but defense counsel s own trial strategy. While the QPO did require defense counsel to have the ex parte interviews transcribed, it did not state that the resulting transcripts would automatically be turned over to Plaintiff s counsel. (Pet. For Cert., Ex. 3, p. 2.) Had defense

9 counsel known that the transcripts were to be summarily handed over to Plaintiff s counsel, they may have forgone conducting the ex parte interviews and chosen instead to have a traditional deposition with both parties present. Knowing all of this, the trial court s refusal to acknowledge that the transcripts of the ex parte interviews may contain work product is of great concern to GHA. Georgia and federal law are clear on what may constitute work product. Any material collected by counsel in the course of preparation for possible litigation is protected from disclosure under the work product protection. McKinnon v. Smock, 264 Ga. 375 (1994); Hickman, 329 U.S. 492 (1947). The material need not contain the mental impressions, conclusions, opinions, or legal theories of the preparer, but need only have been prepared in anticipation of litigation. Dep t of Transp. v. Hardaway Co., 216 Ga. App. 262, 263 (1995). However, to the extent that work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification. In re Sealed Care, 676 F.2d 793, 810 (D.C. Cir. 1982); see also McKinnon, 264 Ga. 375 (1994). Indeed, there is strong public policy underlying the work product doctrine. Upjohn Co. v. United States, 449 U.S. 383, 398 (1981). A lawyer s work is reflected in tangible and intangible ways including, but not limited to, interviews, statements, memoranda, correspondence, briefs, mental impressions,

10 [and] personal beliefs. Nobles, 422 U.S. at 237. Such materials are not open to opposing counsel on mere demand (id.), which is exactly what the trial court allowed in the present action. Furthermore, Georgia law has specifically classified witness statements transcribed by an attorney as work product. Norfolk S. Ry. Co. v. Thompson, 208 Ga. App. 240 (1993) (holding ex parte statements of defendant s employees taken by plaintiff s counsel were protected by O.C.G.A (b) (3)); Tobacco Rd., Inc. v. Callaghan, 174 Ga. App. 539 (1985) (reversing trial court s order requiring production of witness statements obtained from appellant s investigator because there was no showing of substantial need and undue hardship in obtaining equivalent materials); Clarkson Industries, Inc. v. Price, 135 Ga. App. 787, (1975) (finding statements of witnesses exempt from general scope of discovery when they have been orally given to a party or his representative who records it in anticipation of litigation). The transcripts of defense counsel s ex parte witness interviews are clearly work product and, as such, should be afforded protection from disclosure to opposing counsel. Without clarification from this Court, even the threat of unfiltered production of interview transcripts to plaintiff s counsel will stymie informal defense interviews altogether and will create an uneven judicial playing field for hospital defendants

11 B. The Trial Court Erred By Failing To Require Plaintiff s Counsel To Show An Exception To The Work Product Doctrine And By Not Conducting An In Camera Review. A trial court cannot choose to ignore a defendant s claim that materials are protected by the work product doctrine. See McKesson HBOC v. Adler, 254 Ga. App. 500 (2002). For example, in McKesson, the Georgia Court of Appeals found that the trial court erred under O.C.G.A (b) (3) in ordering the defendant to provide information without first deciding whether the work product doctrine applied, even after the defendant claimed that the work product doctrine barred discovery of the information. See id. at 501. The standard of protection under the work-product doctrine is high and contains very specific requirements for the trial court in considering such a claim. Id. First, the moving party must show that he has a substantial need for such evidence in the preparation of his case, and that it would cause an undue hardship upon him to develop that evidence by means other than extraction from the files of the opposing party. Id. at 502; Callaghan, 174 Ga. App. at 540. Next, if the trial court is satisfied that the required showing has been made, the trial court may order the production only after an in camera examination has been made with a view toward protecting against the disclosure of mental impressions, conclusions, opinions, or legal theories. McKesson, 254 Ga. App. at 502; Callaghan, 174 Ga. App. at

12 Here, the trial court failed to conduct the required investigation and analysis of WellStar s work product claim or to rule on the merits of that claim. (See Pet. For Cert., Ex. 1.) Without this Court expressly requiring such an analysis, hospital defendants will be left with the indelible threat of an improper intrusion into the work product of their counsel. i. The Trial Court Did Not Find That Plaintiff Had A Substantial Need For The Transcripts Or That Undue Hardship Would Result If They Were Not Produced. There was no effort whatsoever by Plaintiff to show a substantial need for the transcripts of defense counsel s ex parte witness interviews. [W]ithout some showing of necessity therefor, an attorney is not required to produce and make available to the attorney for the adverse party the attorney s work product, including statements that the attorney may have obtained from witnesses or memoranda that the attorney may have made in anticipation of the litigation. Setzers Super Stores, 104 Ga. App. at 120; see also Atlantic Coast Line R.R., 111 Ga. App. at 154. Nor can Plaintiff show that he cannot obtain a substantial equivalent to the transcripts without undue hardship. See U.S. v. Chatham City Corp., 72 F.R.D. 640 (S.D. Ga. 1976) (finding substantial equivalent of witness statements can be obtained by personal interview or deposition); see also Miles v. Bell Helicopter Co., 385 F. Supp (N.D. Ga. 1974) (finding plaintiff could obtain substantial

13 equivalent of reports created by defendants by taking depositions of employees who prepared them). In fact, here, the health care provider witnesses are more accessible to Plaintiff s counsel than they are to defense counsel. Plaintiff s counsel was not required to seek a QPO before speaking informally with any the decedent s treating health care providers. See generally Baker, 288 Ga. 336 (2010). Plaintiff s counsel could have, and in all likelihood did, conduct their own ex parte interviews of the decedent s treating medical providers. Therefore, the only logical reason why Plaintiff s counsel would seek access to the transcripts of defense counsel s witness interviews is to gain insight into their legal opinions, impressions, and trial strategies. Such opinion work product, however, falls outside of the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Hickman, 329 U.S. at 510. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. Id. Moreover, [d]iscovery was hardly intended to enable a learned profession to perform its functions... on wits borrowed from the adversary. Id. at 516 (concurring opinion). ii. The Trial Court Failed To Conduct An In Camera Review Of The Transcripts. Even if the Plaintiff had met his burden of showing substantial need and undue hardship, which he did not, an in camera review by the trial judge is always

14 required when there is a dispute over alleged work product before mandating disclosure. McKinnon, 264 Ga. at 378 ( The trial court shall then conduct an in camera inspection of the document and instruct the attorney claiming work product protection how the document should be altered for disclosure to the adverse party ) (emphasis added); O.C.G.A (b) (3). The use of in camera inspections prior to a discovery order is standard judicial practice under both Georgia and federal law. It has been deemed plain error for a trial court not to have conducted an in camera review of materials after the work product protection has been asserted. See McKesson, 254 Ga. App. 500 (2002) (overturning trial court s order when it did not properly address a claim of work product); see also In re Antitrust Grand Jury, 805 F.2d 155, 168 (6th Cir. 1986) (deeming it plain error for trial court to not review documents in camera). Here, there is no justifiable reason for why the trial court did not agree to conduct an in camera review of the transcripts after defense counsel explicitly asserted the work product protection and asked the trial court to examine the materials before issuing its order. (See Pet. For Cert, Ex. 1.) As such, the trial court s order must be reversed. C. The Trial Court s Order Runs Afoul Of Baker v. WellStar. The trial court used the mechanisms laid out by Baker to grant the QPO authorizing ex parte communications between defense counsel and the decedent s

15 treating medical providers. (See Pet. For Cert., Ex. 3.) In the QPO, the trial court explicitly stated that it found no evidence of circumstances warranting additional procedural safeguards beyond what Baker requires. (Id. at p. 3.) Therefore, by allowing defense counsel to conduct ex parte witness interviews, the trial court authorized defense counsel to conduct those interviews as if they would be used solely for their own trial strategy not for production to opposing counsel. The Baker Court cited to and followed the logic of Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007), a New York case that found it improper for a QPO to contain direction for defense counsel to hand over to [their] adversary copies of all written statements and notations obtained from the physician during the private interviews, any audio or video recordings or transcripts, and interview memoranda or notes. Baker, 288 Ga. at 339. Accordingly, there is nothing in the Baker decision that gives the trial court credence to ignore the work product protection. This Court should clarify that prior to a trial court compelling disclosure of transcripts of ex parte witness interviews conducted pursuant to a Baker-compliant QPO, the requirements of O.C.G.A (b) (3) must be met. V. CONCLUSION GHA embraces the privacy rights of patients, and it shares in the interest of ensuring that appropriate protections are in place to protect those rights. At the same time, however, GHA has an interest in ensuring that its member hospitals

16 have a level playing field during litigation, which includes the ability to utilize the same tools that are available to plaintiffs namely, the ability to conduct informal interviews of treating physicians. The current system of using QPOs works and strikes the correct balance; however, the trial court s ruling in this case threatens to tip that balance and weigh the scales of justice heavily against Georgia s hospitals. GHA therefore respectfully requests that this Court accept review of this case in order to ensure that neither side in litigation has an unfair advantage. Moreover, this case offers an opportunity for the Court to provide guidance on when and how interview transcripts should be utilized, as well as guidance on the importance of maintaining the confidentiality of attorney work product. For the foregoing reasons, GHA asks that the Court grant Petitioner s Petition for Certiorari and reverse the trial court s Order. Respectfully submitted this 11th day of July, ARNALL GOLDEN GREGORY LLP s:\ Jason E. Bring Jason E. Bring Georgia Bar No th Street, NW, Suite 2100 Atlanta, Georgia Ph: (404) Attorneys For Amici Curiae Georgia Hospital Association

17 CERTIFICATE OF SERVICE This is to certify that I have served copies of the foregoing AMICUS CURIAE BRIEF OF THE GEORGIA HOSPITAL ASSOCIATION upon the persons listed below by and U.S. Mail, first class postage, on this 11th day of July, 2012: Thomas William Malone, Esq. Simuel F. Doster, Jr., Esq. Meri K. Benoit, Esq. Allen, McCain & O Mahony, P.C. Malone Law Office Two Midtown Plaza, Suite 1700 Two Ravinia Drive, Suite W. Peachtree St. N.W. Atlanta, Georgia Atlanta, Georgia Henry D. Green, Jr., Esq. Mary Paige Adams, Esq. Green & Sapp, LLP 1827 Powers Ferry Road Building 4 Atlanta, Georgia s:\ Jason E. Bring Jason E. Bring ARNALL GOLDEN GREGORY LLP th Street, NW Suite 2100 Atlanta, Georgia Ph: (404) Fax: (404) Attorneys For Amicus Curiae Georgia Hospital Association