Cobb Court Erred in Malpractice Suit

James Jordan, whose wife died more than three years ago from ovarian cancer, was dealt another blow today in a medical malpractice lawsuit filed against WellStar Health System and a physician.

In a unanimous opinion, the state's high court determined that a Cobb County State Court judge "was wrong" to order WellStar’s attorneys to give Jordan's attorney the transcripts of interviews they conducted with his wife’s physicians outside the presence of Jordan’s attorney.

Nearly two years after Dr. James A. Sutherland Jr. performed an elective vaginal hysterectomy on Marilyn Kay Adams Jordan due to a uterine prolapse, Marilyn Jordan was diagnosed with advanced stage ovarian cancer in June 2008. She died in January 2010, and her husband sued Sutherland and WellStar Health System in May 2010.

Jordan claimed that his wife’s fallopian tubes and ovaries should have been removed at the time of her hysterectomy because she had a family history of cancer.

The case was set for trial in June 2012, but problems between the two sides arose when Jordan's attorney requested transcripts of informal interviews between WellStar's attorneys and several of Marilyn Jordan's physicians.

WellStar objected to that request for two reasons. Not only did the transcripts contain confidential witness statements that were "work product protected by state law," the documents would reveal the health system's defense strategy.

Jordan’s attorney countered with a motion to compel, and a Cobb State Court judge ordered WellStar to produce the transcripts. When the Georgia Court of Appeals denied WellStar’s application to appeal, WellStar and Sutherland appealed to the Supreme Court of Georgia.

The high court concluded the lower court erred when it ruled that the witness interview transcripts were not work product protected by state law.

"Under Georgia law," Presiding Justice Hugh Thompson wrote, "documents and tangible things prepared in anticipation of litigation constitute highly protected work product discoverable only if the party moving to compel discovery demonstrates a substantial need for the materials and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

The case will now head back to the Cobb County State Court for further proceedings.

Tell us what you think in the comments, share your photos and videos, and don’t miss any of the local news you care about—subscribe to Acworth Patch's newsletter, like us on Facebook and follow us on Twitter.