In a November 16, 2012 decision, a panel of the Georgia Court of Appeals ruled that trial judges have discretion to refuse to grant defense counsel the right to interview non-party treating physicians without plaintiffs’ permission.

The court of appeals affirmed a trial court ruling denying the defense’s motion for a protective order to interview several doctors regarding care provided to the decedent. Defendants had argued that the decision should be overruled on the basis that without the interviews, they would be unable to adequately prepare the doctors for trial, thus causing defendants to look bad in front of the jury and denying them a fair trial.

Said the panel: “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, instead, this argument constitutes mere speculation and conjecture about possible future events that cannot fulfill their burden of demonstrating harm by the record."

Citing the Georgia Supreme Court case Baker v. WellStar Health Systems, the court of appeals noted that trial judges should limit defendants to discussing only the medical conditions at issue in the litigation. The defendants in the instant case had proposed an order which would allow them to question treating physicians about a much broader range of medical topics.

A disappointed counsel for the defense commented that the restriction on access to treating physicians is “a unique situation in civil litigation – it’s the only situation where one party is not permitted to go and conduct a witness interview.” He added that a lawyer can always go interview a witness to a car wreck or similar incident.

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