Brewer Ex Rel. Leach v. Hunter , 236 N.C. App. 1 ( 2014 )

NO. COA14-7
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
JEROME BREWER, SABRINA BREWER,
and MATTHEW J. BREWER, by and
through his Guardian Ad Litem,
Timothy T. Leach,
Plaintiffs
v. Gaston County
No. 11-CVS-1437
WILLIAM D. HUNTER, M.D.,
NEUROSCIENCE & SPINE CENTER OF
THE CAROLINAS, P.A., and
NEUROSCIENCE & SPINE CENTER OF
THE CAROLINAS, L.L.P.
Defendants
Appeal by defendants from order entered 15 August 2013 by
Judge F. Donald Bridges in Gaston County Superior Court. Heard
in the Court of Appeals 8 May 2014.
Law Office of Thomas D. Bumgardner, PLLC, by Thomas D.
Bumgardner, and The Eisen Law Firm Co., L.P.A., by Brian N.
Eisen, pro hac vice, for plaintiffs-appellees.
Lincoln Derr, PLLC, by Sara R. Lincoln and Scott S.
Addison, for defendants-appellants.
DAVIS, Judge.
William D. Hunter, M.D. (“Dr. Hunter”), Neuroscience &
Spine Center of the Carolinas, P.A., and Neuroscience & Spine
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Center of the Carolinas, L.L.P. (collectively “Defendants”)
appeal from an order granting in part the motion of Jerome
Brewer, Sabrina Brewer, Matthew Brewer, and Timothy T. Leach,
the guardian ad litem of Matthew Brewer, (collectively
“Plaintiffs”) to compel discovery in this medical malpractice
action. On appeal, Defendants contend that the trial court
erred in requiring them to produce various medical records
regarding certain former patients of Dr. Hunter who are not
parties to this lawsuit. After careful review, we conclude that
the trial court’s order should be affirmed.
Factual Background
In 1998, Jerome Brewer (“Mr. Brewer”) underwent thoracic
spinal surgery for treatment of spinal stenosis, back pain, and
bilateral leg weakness. In 2007, Mr. Brewer was seen by his
primary care physician for treatment of back pain and leg
weakness, symptoms similar to those that led to his surgery in
1998.
On 28 January 2008, Mr. Brewer was referred to Dr. Hunter,
who was employed by Neuroscience & Spine Center of the
Carolinas, P.A. and Neuroscience & Spine Center of the
Carolinas, L.L.P., after an MRI scan revealed diffuse
degenerative disease in Mr. Brewer’s lumbar area and severe
canal stenosis. On 19 March 2008, Dr. Hunter diagnosed Mr.
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Brewer as suffering from severe spinal stenosis and recommended
a thoracic laminectomy. Mr. Brewer consented to the surgery,
which was performed by Dr. Hunter on 10 April 2008.
Upon awakening from surgery, Mr. Brewer discovered that he
was unable to move his lower extremities and had no sensation
below his thighs. An MRI scan revealed that he had suffered a
severe spinal cord infarction during surgery. Subsequent MRI
scans revealed that Mr. Brewer continued to suffer from severe
myelomalacia. To date, Mr. Brewer remains permanently confined
to a wheelchair, continues to undergo physical therapy and
rehabilitation, and requires assistance with daily tasks,
including managing his bowel and bladder functions.
On 31 August 2012, Plaintiffs filed an amended complaint1 in
Gaston County Superior Court against Defendants, alleging
medical negligence, loss of consortium, and negligent infliction
of emotional distress. Plaintiffs subsequently served a set of
written discovery requests on Defendants which sought, inter
alia, “all documents . . . showing Dr. Hunter’s complications
and complication rate for thoracic laminectomies during 2005,
2006, 2007, and 2008 (up to and including April 10, 2008)” and
“all documents . . . showing Dr. Hunter’s case volume for
thoracic laminectomies during 2005, 2006, 2007, and 2008 (up to
1
Plaintiffs’ original complaint is not contained in the record
on appeal.
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and including April 10, 2008).” In response, Defendants
produced a copy of a letter from Gaston Memorial Hospital
identifying 14 thoracic laminectomies performed by Dr. Hunter at
the hospital between May of 2005 and October of 2011 (including
the operation performed on Mr. Brewer) and stating that those
surgeries “were performed with no issues noted[.]”
On 21 September 2012, Dr. Hunter was deposed. During his
deposition, Dr. Hunter testified that he had personally created
a list of 44 instances, including patient names and dates of
surgery, in which he had performed thoracic laminectomies.
Plaintiffs subsequently requested the production of this
document, and a copy of the document – with the names of the
patients redacted – was provided to Plaintiffs’ counsel.
On 25 October 2012, Plaintiffs filed a second set of
written discovery requests in which they sought, among other
things, “the operative notes and discharge summaries for all
surgeries performed by Dr. Hunter and as identified on the
document created by Dr. Hunter prior to his deposition and
attached as Exhibit A to this Request[.]” Plaintiffs attached
to this request the redacted document that had been produced by
Defendants following Dr. Hunter’s deposition. After Defendants
served objections to this request, Plaintiffs filed a motion to
compel on 18 July 2013.
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A hearing on Plaintiffs’ motion took place on 29 July 2013.
On 15 August 2013, the trial court entered an order granting
Plaintiffs’ motion in part, which contained the following
findings of fact and conclusions of law:
1. Plaintiff sought production of 44
individual patient's operative notes and
discharge summaries documenting surgical
procedures they had with the Defendant.
2. Plaintiff argued that the operative
notes and discharge summaries of the 44
individual patients were necessary to assess
the credibility of the Defendant with regard
to his testimony about the number of
surgical procedures he had performed and the
number of
complications following those procedures he
had encountered at the time he responded to
questions at his deposition. Plaintiff also
argued that the operative notes would
demonstrate the operative technique utilized
by Defendant.
3. The Court has considered the interests
of the parties and the issues at stake in
this litigation and carefully weighed these
interests against the concern to protect the
private health information of non-party
patients. A balance between these competing
interests is best obtained by compelling
production of some of the requested
documents, with appropriate redactions that
would allow for the protection of the
identity of the patients.
4. In the exercise of its discretion, this
Court finds good cause exists for the
Plaintiffs' Motion to Compel Discovery, and
it is ALLOWED IN PART and DENIED IN PART.
IT IS THEREFORE ORDERED, ADJDUGED [sic], and
DECREED that:
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1. The Defendants shall produce the
operative notes and discharge summaries for
all procedures occurring from 2005 through
October 15, 2011 as identified on Exhibit A
to
Plaintiffs' Motion to Compel Discovery,
including the following dates of service:
5/10/05; 5/17/05; 5/23/05; 7/28/05; 9/8/05;
10/24/05; 3/9/06; 3/13/06; 7/15/06; 8/30/07;
9/17/07; 9/28/07; 1/18/08; 2/15/08; 7/10/08;
11/21/08; 11/24/08; 4/2/09; 10/5/10;
10/8/10; 3/4/11; 3/28/11; 5/13/11; 6/23/11;
and 10/15/11.
2. Plaintiff's request for production of
operative notes and discharge summaries for
procedures occurring prior to 2005 is DENIED
and the procedures identified on Exhibit A
to Plaintiff's Motion to Compel Discovery
prior to May 10, 2005, shall not be produced
as they are privileged and not relevant to
this matter.
3. Prior to production, the Defendants may
redact any protected health information from
the operative notes and discharge summaries.
4. To the extent that there is
information, other than identifying
information, contained in the produced
records that is highly sensitive, or may
otherwise require redaction, Defense counsel
may submit the operative note and discharge
summary to this Court for in camera
inspection. The Court will review and
consider any proposed redactions.
5. The Defendants shall produce these
operative notes and discharge summaries
within a reasonable time not to exceed 45
days from entry of this order.
6. Because the records being produced
pursuant to this Order are subject to the
protections of the Health-Insurance
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Portability and Accountability Act of 1996
(“HIPAA"), 45 C.F.R. 164.500, et seq., N.C.
Gen. Stat. § 131E-97, and N.C. Gen. Stat. §
8-53, the production of these records
affects a substantial right and there is no
just reason to delay appeal.
Defendants filed a timely notice of appeal to this Court.
Analysis
Defendants contend that the trial court erred by granting
in part Plaintiffs’ motion to compel. We disagree.
I. Jurisdiction
As an initial matter, we must determine whether we have
jurisdiction over this appeal. “An order compelling discovery
is generally not immediately appealable because it is
interlocutory and does not affect a substantial right that would
be lost if the ruling were not reviewed before final judgment.”
Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579
(1999). However, where a party asserts a privilege or immunity
that directly relates to the matter to be disclosed pursuant to
the interlocutory discovery order and the assertion of the
privilege or immunity is not frivolous or insubstantial, the
challenged order affects a substantial right and is thus
immediately appealable. K2 Asia Ventures v. Trota, 215 N.C.
App. 443, 446, 717 S.E.2d 1, 4, disc. review denied, 365 N.C.
369, 719 S.E.2d 37 (2011).
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In the present case, Defendants argue that the documents at
issue are immune from discovery based on the privilege set out
in N.C. Gen. Stat. § 8-53, which governs the discoverability of
a patient’s medical records. Our Supreme Court has held that
“when . . . a party asserts a statutory privilege which directly
relates to the matter to be disclosed under an interlocutory
discovery order, and the assertion of such privilege is not
otherwise frivolous or insubstantial, the challenged order
affects a substantial right[.]” Sharpe, 351 N.C. at 166, 522
S.E.2d at 581. Accordingly, we possess jurisdiction over this
appeal.
II. Application of N.C. Gen. Stat. § 8-53N.C. Gen. Stat. § 8-53 states as follows:
No person, duly authorized to practice
physic or surgery, shall be required to
disclose any information which he may have
acquired in attending a patient in a
professional character, and which
information was necessary to enable him to
prescribe for such patient as a physician,
or to do any act for him as a surgeon, and
no such information shall be considered
public records under G.S. 132-1.
Confidential information obtained in medical
records shall be furnished only on the
authorization of the patient, or if
deceased, the executor, administrator, or,
in the case of unadministered estates, the
next of kin. Any resident or presiding judge
in the district, either at the trial or
prior thereto, or the Industrial Commission
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pursuant to law may, subject to G.S. 8-53.6,2
compel disclosure if in his opinion
disclosure is necessary to a proper
administration of justice. If the case is in
district court the judge shall be a district
court judge, and if the case is in superior
court the judge shall be a superior court
judge.
N.C. Gen. Stat. § 8-53 (2013) (emphasis added).
In the present case, Defendants contend that the production
of non-party medical records should be compelled only in
exceptional circumstances. However, the essence of their
argument is grounded more in policy than in law. It is well
established in North Carolina that policy decisions are solely
within the province of the General Assembly. See Richards v.
N.C. Tax Review Bd., 183 N.C. App. 485, 487, 645 S.E.2d 196, 197
(2007) (holding that the role of policy maker has been entrusted
by our Constitution to the General Assembly).
While the General Assembly could have drafted N.C. Gen.
Stat. § 8-53 so as to impose greater restrictions on the
disclosure of non-party medical records than those applicable to
the disclosure of the medical records of parties to the
litigation before the court, no such distinction has been drawn
in this statute. Instead, N.C. Gen. Stat. § 8-53 leaves the
discoverability of all patient records subject to the discretion
2
N.C. Gen. Stat. § 8-53.6 concerns the privilege applicable to a
marital counselor, psychologist, or social worker in alimony
actions and is, therefore, not relevant to the present case.
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of the trial courts of this State based upon whether the court
believes the disclosure of records is “necessary to a proper
administration of justice.” N.C. Gen. Stat. § 8-53.
This Court lacks the authority to judicially create – as
Defendants invite us to do – a new standard applicable to the
production of medical records where the General Assembly has
enacted a statute addressing the issue. See State v. Sims, 216
N.C. App. 168, 173, 720 S.E.2d 398, 401 (2011) (holding that
where the General Assembly “requires the Court to exercise its
jurisdiction in a certain manner, to follow a certain procedure,
or otherwise subjects the Court to certain limitations, an act
of the Court beyond these limits is in excess of its
jurisdiction”).
Therefore, the only question before us is whether, on the
facts of the present case, the trial court abused its discretion
in determining that the disclosure of various records of certain
former patients of Dr. Hunter was “necessary to a proper
administration of justice.” Our prior case law applying N.C.
Gen. Stat. § 8-53 makes clear that a trial court’s ruling
pursuant to this statute is reviewed under an abuse of
discretion standard. For example, in Roadway Exp., Inc. v.
Hayes, 178 N.C. App. 165, 631 S.E.2d 41 (2006), the plaintiff
sought discovery concerning the issue of whether the defendant
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had been taking any prescription medications and had consumed
alcohol at the time of a motor vehicle accident. Id. at 168,
631 S.E.2d at 44. The trial court ordered the defendant to
produce his medical records under seal for an in camera review,
limiting the scope of production to “only those medical records
that mention or reflect the results of any tests performed to
determine Defendant’s blood alcohol content and the presence of
controlled substances in his body.” Id. at 170, 631 S.E.2d at
45-46. Following the in camera review, the trial court ordered
that the records be produced to the plaintiff. Id. at 167, 631
S.E.2d at 44.
On appeal, we held — based on N.C. Gen. Stat. § 8-53 — that
“[t]he physician-patient privilege is not an absolute privilege,
and it is in the trial court's discretion to compel the
production of evidence that may be protected by the privilege if
the evidence is needed for a proper administration of justice.”
Id. at 170, 631 S.E.2d at 45. We further emphasized that “[t]he
decision that disclosure is necessary to a proper administration
of justice is one made in the discretion of the trial judge, and
the defendant must show an abuse of discretion in order to
successfully challenge the ruling.” Id. at 171, 631 S.E.2d at
46 (citations and quotations omitted).
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In State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992), the
State sought to compel the release of medical records concerning
the defendant’s blood alcohol content following a motor vehicle
accident. Id. at 591, 411 S.E.2d at 607. Citing N.C. Gen.
Stat. § 8-53, our Supreme Court affirmed the trial court’s order
compelling the disclosure of the requested records, holding that
a court’s ruling pursuant to this statute may only be overturned
on appeal upon a showing of abuse of discretion. Id. at 591-92,
411 S.E.2d at 607.3
“Under the abuse-of-discretion standard, we review to
determine whether a decision is manifestly unsupported by
reason, or so arbitrary that it could not have been the result
of a reasoned decision.” Mark Grp. Int'l, Inc. v. Still, 151
N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002). In the present
case, after a hearing in which it carefully considered the
arguments of counsel and reviewed the documents submitted by the
parties, the trial court summarized the basis for its holding as
follows:
My conclusion is that the request of records
are [sic] relevant from the standpoint of
credibility, experience, and technique used.
That the records that I'm going to encompass
3
Defendants cite to several cases from other jurisdictions in
which courts have refused to require the production of non-party
medical records in discovery. However, unlike North Carolina,
none of those jurisdictions confer upon their trial courts the
discretion to determine the discoverability of such records.
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by this order are necessary for the
administration of justice.
The court then entered an order reflecting the fact that it
had carefully balanced the respective interests implicated by
Plaintiffs’ motion:
The Court has considered the interests of
the parties and the issues at stake in this
litigation and carefully weighed these
interests against the concern to protect the
private health information of non-party
patients. A balance between these competing
interests is best obtained by compelling
production of some of the requested
documents, with appropriate redactions that
would allow for the protection of the
identity of the patients.
The careful consideration given to this issue by the trial
court was evidenced by its decision to (1) require the
production of only 25 of the 44 patient records requested; (2)
provide for the redaction of information that could reveal the
identity of the patients whose records were being produced; and
(3) recognize the potential need of the parties to obtain an in
camera inspection of any portions of the records to be produced
containing other personal or sensitive information that could
potentially require redaction.
Based on the facts of this case, we cannot say that the
trial court’s ruling was “manifestly unsupported by reason, or
so arbitrary that it could not have been the result of a
reasoned decision.” Mark Grp. Int'l, Inc., 151 N.C. App. at
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566, 566 S.E.2d at 161. Therefore, we hold that the trial court
did not abuse its discretion in granting in part Plaintiffs’
motion to compel.
Conclusion
For the reasons set out above, the trial court’s 15 August
2013 order is affirmed.
AFFIRMED.
Judges HUNTER, JR. and ERVIN concur.