Crist v. Moffatt, 69PA89

• Decision Date: 01 March 1990
• Docket Number: No. 69PA89,69PA89
• Citation: 326 N.C. 326,389 S.E.2d 41
• Court: North Carolina Supreme Court
• Parties: Hazel Marie CRIST v. Robert C. MOFFATT, M.D.

Page 41

389 S.E.2d 41

326 N.C. 326

Hazel Marie CRIST v.Robert C. MOFFATT, M.D.

No. 69PA89.

Supreme Court of North Carolina.

March 1, 1990.

DeVere C. Lentz, Jr., P.A. by Shirley H. Brown, and Tharrington, Smith & Hargrove by Elizabeth F. Kuniholm, Asheville, for plaintiff-appellee.

Roberts Stevens & Cogburn, P.A. by Isaac N. Northup, Jr., Asheville, for defendant-appellant.

Tharrington, Smith & Hargrove by Elizabeth F. Kuniholm, Raleigh, for North Carolina Academy of Trial Lawyers, amicus curiae.

Poyner & Spruill by John R. Jolly, Jr., Mary Beth Johnston, and Robert O. Crawford III, Raleigh, for North Carolina Ass'n of Defense Attorneys, amicus curiae.

Tuggle Duggins Meschan & Elrod, P.A. by Joseph E. Elrod III, Sally A. Lawing, and J. Reed Johnston, Jr., Greensboro, for North Carolina Soc. of Obstetricians and Gynecologists, amicus curiae.

WHICHARD, Justice.

Plaintiff filed this medical malpractice action on 4 December 1986, alleging in her complaint that defendant performed surgery on her and rendered post-operative treatment to her in a negligent manner, causing injury, pain and suffering, and damages.After answering, defendant served plaintiff with interrogatories and requests for all medical bills incurred by plaintiff as a result of defendant's allegedly negligent acts.Plaintiff complied, producing among others the records of her treatment by Dr. James W. Tyson and Dr. F. Alan Thompson.In her supplemental answer to defendant's interrogatories she identified Dr. F. Alan Thompson and Dr. James W. Tyson as physicians who "will testify as to facts and circumstances" of their treatment of plaintiff prior to surgery.

Defendant deposed plaintiff on 6 July 1987 and questioned her about the treatment rendered by nonparty treating physicians, including Drs. Thompson and Tyson.On or about 23 November 1987defendant's attorney, Isaac N. Northup, Jr., met privately with Dr. Tyson to discuss his treatment of plaintiff.Dr. Tyson later told plaintiff's attorney that Mr. Northup had assured him that plaintiff had waived her physician-patient privilege.SeeN.C.G.S. § 8-53(1986).Upon being questioned by plaintiff's attorney, Mr. Northup advised that he also had met with Dr. Thompson, on or about 19 November 1987.A letter from Dr. Thompson to plaintiff's attorney stated: "It was also my understanding at the time the discussion took place that the physician-patient privilege had been waived under the new law."At oral argument Mr. Northup confirmed that he had advised both physicians that plaintiff had waived the privilege.

Plaintiff filed a motion to compel disclosure of defendant's attorney's private conversations with plaintiff's nonparty treating physicians.In addition, plaintiff requested that the court prohibit the use at trial of any information obtained during the private conversations and prohibit any further ex parte contact with nonparty treating physicians.The trial court entered an order containing the following pertinent findings, conclusions, and orders:

11.The plaintiff has not expressly waived and did not expressly waive prior to November 19, 1987, and November 23, 1987, the physician/patient privilege conferred by N.C.G.S. 8-53.

12.No resident or presiding judge, either at trial, this matter not having been called for trial, nor prior to trial during the course of discovery, has entered an order compelling disclosure pursuant to N.C.G.S. 8-53.

13.No resident or presiding judge has entered an order finding that plaintiff has waived any physician/patient privilege by providing, in response to formal requests for discovery, copies of her medical records, by testifying concerning her medical treatment at her deposition, by identifying Dr. F. Alan Thompson and Dr. James Tyson as witnesses who would testify concerning their medical treatment of plaintiff, and by not objecting to the deposition of any non-party treating physician.

Based upon the foregoing findings of fact the court concludes as a matter of law that the conduct of Isaac N. Northup, Jr. in privately contacting and discussing plaintiff's medical care and treatment with Dr. James Tyson and Dr. F. Alan Thompson, non-party treating physicians, without the plaintiff's knowledge and consent, although in good faith, was not proper.

Now, therefore, it is ordered, adjudged and decreed as follows:

1.The defendant's attorneys shall fully disclose within fifteen (15) days of the date of this order, in written form, the substance of all private conversations between the defendant's attorneys and non-party treating physicians;

2.Defendant's attorneys shall not contact non-party treating physicians without the knowledge and consent of plaintiff's attorney or, alternatively, without an order of the court;

3.The presiding trial judge shall rule upon the use at trial of any information and/or opinions obtained as a result of private conversations between the defendant's attorneys and non-party treating physicians[.]

* * * * * *

Defendant appealed from this order, conceding that his appeal was interlocutory, but arguing that the order affects a substantial right.The Court of Appeals dismissed the appeal, stating: "We do not perceive that Judge Hyatt's order deprived defendant of any right, substantial or otherwise."Crist v. Moffatt, 92 N.C.App. 520, 523, 374 S.E.2d 487, 488(1988).We allowed discretionary review on 8 June 1989.

While an appeal may not be taken from an interlocutory order unless the order affects a substantial right--N.C.G.S. § 1-277(a)(1983);N.C.G.S. § 7A-27(d)(1989)--because of the importance of the question presented, we elect to vacate the Court of Appeals opinion dismissing the appeal and to consider the case on the merits.We do so pursuant to the Constitution of North Carolina, article IV, section 12(1), which gives this Court jurisdiction "to review upon appeal any decision of the courts below, upon any matter of law or legal inference" and gives it "general supervision and control over the proceedings of the other courts."SeeLea Company v. N.C. Bd. of Transportation, 317 N.C. 254, 263, 345 S.E.2d 355, 360(1986)(general supervisory powers provided by article IV, section 12(1) rarely used but may be invoked "to promote the expeditious administration of justice").

Defendant assigns error to the trial court's failure to find that plaintiff waived the physician-patient privilege conferred by N.C.G.S. § 8-53.¹He argues that plaintiff waived the privilege by providing copies of her medical records to opposing counsel, testifying at her deposition concerning her treatment by other doctors, and identifying Drs. Thompson and Tyson as witnesses.

A patient may impliedly waive the physician-patient privilege by his or her conduct.Cates v. Wilson, 321 N.C. 1, 14, 361 S.E.2d 734, 742(1987).The facts and circumstances of a particular case determine whether a patient's conduct constitutes an implied waiver.Id.;Capps v. Lynch, 253 N.C. 18, 23, 116 S.E.2d 137, 141(1960).Both Cates and Capps applied this ad hoc test in the context of a trial and held that each plaintiff's public disclosure of his or her medical condition at trial waived the privilege.

The privilege is waived by implication where the patient calls the physician as a witness and examines him as to patient's physical condition, where patient fails to object when the opposing party causes the physician to testify, or where the patient testifies to the communication between himself and physician.

Capps, 253 N.C. at 23, 116 S.E.2d at 141(quoted inCates, 321 N.C. at 14, 361 S.E.2d at 742).Defendant asks us similarly to find an implied waiver by virtue of plaintiff's conduct during discovery, asserting that no meaningful distinction exists between disclosures occurring at trial and disclosures made during discovery.

Defendant also assigns error to the trial court's finding that defense counsel acted improperly by privately contacting and discussing plaintiff's medical care and treatment with plaintiff's nonparty treating physicians, and to the trial court's order requiring defense counsel to obtain plaintiff's consent or a court order before further contacting plaintiff's nonparty treating physicians.Assuming, without deciding, that plaintiff impliedly waived her physician-patient privilege by her pretrial conduct, we overrule this assignment of error and uphold the finding and order entered by the trial court on grounds distinct from that of physician-patient privilege.We hold that the trial court did not abuse its broad discretionary power to ensure justice in entering the order.Miller v. Greenwood, 218 N.C. 146, 150, 10 S.E.2d 708, 711(1940)(within trial court's discretion to take any action within the law "to see to it that each side has a fair and impartial trial");see alsoState v. Britt, 285 N.C. 256, 271-72, 204 S.E.2d 817, 828(1974)("paramount duty" of trial court to control course of trial so as to prevent injustice to any party; trial court possesses broad discretionary powers in exercise of this duty).We affirm the order on this basis and on the basis of public policy grounds discussed below.

Courts in numerous other jurisdictions have considered whether opposing counsel may conduct ex parte interviews of the injured party's treating physicians following waiver of the physician-patient privilege.Annot."Discovery: right to ex parte interview with injured party's treating physician,"50 A.L.R.4th 714(1986).The emerging consensus adheres to the position that defense counsel is limited to the formal methods of discovery enumerated by the jurisdiction's rules of civil procedure, absent the patient's express consent to counsel's ex parte contact with her treating physician.See, e.g., Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952(1986), appeal denied, 113 Ill.2d 584, 106 Ill.Dec. 55, 505 N.E.2d 361, cert. denied, 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738(1987)...