On TV and in movies, we have all seen the “surprise witness” called at trial. But in reality, surprise witnesses are not supposed to occur, and Georgia law permits harsh penalties for parties that fail to disclose witnesses. In a recent Georgia medical malpractice case, one plaintiff found this out when it was too late.
In that case, the plaintiff filed a medical malpractice claim against a doctor and his medical practice in Fulton County. The plaintiff claimed that the doctor failed to timely diagnose and treat an abscess in his thoracic spinal cord, which paralyzed him. The parties engaged in discovery, and four years later, when the case went to trial, the plaintiff called a nurse to testify. The nurse was not specifically identified as a witness in the plaintiff’s discovery responses or in the pre-trial order, and the defendant argued she should be excluded as a witness.
In the early stages of discovery, the defendant asked the plaintiff to identify potential witnesses. The plaintiff responded by stating that he objected to the request and directing the defendants to his complaint, affidavits, and medical records. He also stated that he would supplement his response if more information became available. The plaintiff later supplemented his responses, but he never identified the nurse as a potential witness or a person with knowledge relevant to the complaint.