Brown v. Randolph Hospital, Inc.

Higgins, J.

The Clerk’s first order (ex parte) authorized the plaintiff to examine the individual defendants and two others with respect to the matters set forth in the rather long and detailed petition. After hearing, on the defendants’ motion the Clerk entered a second order vacating, in toto, the order for examination. On appeal, Judge Brock sustained the Clerk’s second order but remanded the cause to the Clerk with leave granted to the plaintiff “to file an amended application,” if so advised. The plaintiff elected to appeal rather than to amend his application.

Implicit in Judge Brock’s order is his view that the plaintiff is entitled to examine the defendants, but not to the sweeping extent requested in the petition, and allowed by the Clerk’s first order. These examples show the scope of the examination requested:

“(e) As to the whereabouts and activities of each of the defendants from 11 o’clock a.m. January 29, 1965, until 3:40 o’clock that afternoon.”

“(f) As to the procedures, customs, practices, devices, methods or standards that any of the defendants either recognize, follow or use in examining, caring for, operating on, treating or observing patients that have difficulty with their tonsils and adenoids and are operated on for their removal and in recording the various developments that occur or conditions that exist in such cases, . . .”

We concur with Judge Brock that the plaintiff should have opportunity to file an amended petition and obtain such information as is contemplated by G.S. 1-568.9 and G.S. 1-568.10.

The plaintiff is entitled to examine the doctors, nurses, and employees of the hospital who were present or participated in the diagnosis, treatment, operative, and post-operative procedures employed in the care and treatment of Jeffrey Harold Brown from the time he entered the hospital, and their relation to the cause of his death. The plaintiff is entitled to examine the records kept by the hospital relating thereto.

Because of the type of examination requested, we concur with the Clerk and Judge Brock that the first order should be set aside. The Clerk made no provision for an amended petition. Judge Brock’s order does make provision for the filing of a proper amended application before the Clerk. In the event the plaintiff, by proper amended petition, obtains another order for the examination, the Clerk will grant him an extension of time for filing the complaint. The statutory procedures above referred to, as well as the following cases, support the position the Court now takes: Griners’ & Shaw, Inc., v. Casualty Co., 255 N.C. 380, 121 S.E. 2d 572; Cates v. Finance Co., 244 N.C. 277, 93 S.E. 2d 145; Nance v. Gilmore Clinic, 230 N.C. 534, 53 S.E. 2d 531.

The order from which the plaintiff appeals provides a method (amended petition) by which the plaintiff may obtain all the information necessary to prepare his complaint. The order entered by Judge Brock is

Affirmed.