Hammond v. Saira Saini, M.D., Carolina Plastic Surgery of Fayetteville, P.C.

• Decision Date: 03 September 2013
• Docket Number: No. COA12–1493.,COA12–1493.
• Citation: 748 S.E.2d 585
• Parties: Judy HAMMOND, Plaintiff, v. Saira SAINI, M.D., Carolina Plastic Surgery of Fayetteville, P.C., Victor Kubit, M.D., Cumberland Anesthesia Associates, P.A., Wanda Untch, James Bax, and Cumberland County Hospital System, Inc., Defendants.
• Court: North Carolina Court of Appeals

748 S.E.2d 585

Judy HAMMOND, Plaintiff,
v.
Saira SAINI, M.D., Carolina Plastic Surgery of Fayetteville, P.C., Victor Kubit, M.D., Cumberland Anesthesia Associates, P.A., Wanda Untch, James Bax, and Cumberland County Hospital System, Inc., Defendants.

No. COA12–1493.

Court of Appeals of North Carolina.

Sept. 3, 2013.

[748 S.E.2d 586]

Appeal by defendants from orders entered 18 June 2012 by Judge Mary Ann Tally in Cumberland County Superior Court. Heard in the Court of Appeals 22 April 2013.

McGuireWoods, LLP, Raleigh, by Patrick M. Meacham and Monica E. Webb, for defendants-appellants Cumberland County Hospital System, Inc., James Bax, and Wanda Untch.

Patterson Harkavy LLP, by Burton Craige, Raleigh, and Narendra K. Ghosh, Chapel Hill; and Beaver, Holt, Sternlicht & Courie, P.A., Fayetteville, by Mark A. Sternlicht, for plaintiff-appellee.

DAVIS, Judge.

Cumberland County Hospital System, Inc. (“CCHS”), James Bax (“Bax”), and Wanda Untch (“Untch”) (collectively “defendants”) appeal from the trial court's orders compelling them to produce certain documents and divulge certain information in discovery to

[748 S.E.2d 587]

Judy Hammond (“plaintiff”). After careful review, we dismiss in part, affirm in part, and remand in part.

Factual Background

On 28 September 2011, plaintiff filed a complaint in Cumberland County Superior Court against defendants as well as Carolina Plastic Surgery of Fayetteville, P.C.; Cumberland Anesthesia Associates, P.A.; Sairi Saini, M.D. (“Dr. Saini”); and Victor Kubit, M.D. (“Dr. Kubit”),¹ which contained the following allegations: Plaintiff reported to Cape Fear Valley Medical Center—operated by CCHS—on 17 September 2010 for a surgical procedure to remove a possible basal cell carcinoma from her face. Dr. Saini, who was employed by Carolina Plastic Surgery of Fayetteville, was responsible for performing the procedure, and Dr. Kubit, an anesthesiologist with Cumberland Anesthesia Associates, was responsible for administering anesthesia during the surgery. Bax and Untch, both registered nurse anesthetists employed by CCHS, were also involved in the provision of anesthesia to plaintiff during the surgery.

Plaintiff was given total intravenous anesthesia. During the operation, Kubit, Bax, and Untch administered supplemental oxygen to plaintiff through a face mask. Drapes were placed around plaintiff's face in such a way that oxygen escaping from the face mask built up under the drapes. When Dr. Saini used an electrocautery device to stop bleeding on plaintiff's face, the oxygen trapped under the drapes ignited and burned the drapes near plaintiff's face. Plaintiff sustained first and second degree burns on her face, head, neck, upper back, right hand, and tongue. Plaintiff also suffered a respiratory thermal injury, right bronchial edema, oral stomatitis, and nasal trauma, which left her with permanent injuries, including scarring.

An answer was filed on behalf of Bax, Untch, and CCHS, generally denying plaintiff's allegations of negligence. Plaintiff subsequently served separate sets of requests for production of documents and interrogatories on Bax, Untch, and CCHS. In their responses, each of them objected to certain aspects of these discovery requests on the grounds that they sought documents or information that was protected from disclosure based on the medical review privilege, the work product doctrine, and the attorney/client privilege. Based on these objections, defendants refused to produce the responsive documents or provide answers to the challenged interrogatories.

Plaintiff filed motions to compel discovery from defendants pursuant to Rule 37 of the North Carolina Rules of Civil Procedure. In opposing the motions, defendants' counsel filed an affidavit from Harold Maynard (“Maynard”), CCHS's risk manager, regarding the accident review process in existence at CCHS. Attached to the affidavit was a copy of an administrative policy of CCHS entitled “Sentinel Events and Root Cause Analysis” (“RCA Policy”). Defense counsel also submitted to the trial court a copy of a document labeled “Fire in Operating Room RCA” (“RCA Report”) and copies of reports entitled “Risk Management Worksheets” (“RMWs”).

After conducting an in camera review of the documents withheld by defendants, the trial court entered separate orders on 18 June 2012 granting plaintiff's motions to compel. Defendants appealed to this Court from these orders.

Analysis I. Appellate Jurisdiction

As a preliminary matter, we must determine whether this Court possesses jurisdiction over defendants' appeal. Defendants' contentions on appeal can be divided into two categories. First, they argue that a segment of the documents and information requested by plaintiff are immune from discovery based on recognized privileges—namely, the medical review privilege, the work product doctrine, and the attorney/client privilege. Second, they contend that portions of plaintiff's discovery requests are overbroad and seek information that is neither relevant nor reasonably calculated to

[748 S.E.2d 588]

lead to the discovery of admissible evidence pursuant to Rule 26 of the North Carolina Rules of Civil Procedure.

“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, ––– N.C.App. ––––, ––––, 717 S.E.2d 1, 4,disc. review denied,365 N.C. 369, 719 S.E.2d 37 (2011).

For this reason, orders compelling discovery of materials purportedly protected by the medical review privilege or work product doctrine are immediately reviewable on appeal despite their interlocutory nature. See, e.g., Woods v. Moses Cone Health Sys., 198 N.C.App. 120, 123–24, 678 S.E.2d 787, 790 (2009) (medical review privilege), disc. review denied,363 N.C. 813, 693 S.E.2d 353 (2010); Boyce & Isley, PLLC v. Cooper, 195 N.C.App. 625, 636–37, 673 S.E.2d 694, 701–02 (work product doctrine), disc. review denied,363 N.C. 651, 686 S.E.2d 512 (2009). Accordingly, this Court has jurisdiction to review defendants' contentions on appeal that are based on the medical review privilege and the work product doctrine.²

However, with regard to the arguments advanced by defendants based on overbreadth and relevancy, we do not possess jurisdiction to consider these contentions because they do not invoke a recognized privilege or immunity, and defendants have failed to otherwise show that they affect a substantial right. See Wind v. City of Gastonia, ––– N.C.App. ––––, ––––, 738 S.E.2d 780, 782 (2013) (holding that only questions of whether requested files were shielded from discovery by statutory privilege were properly before appellate court); K2 Asia Ventures, ––– N.C.App. at ––––, 717 S.E.2d at 4 (concluding that only portion of discovery order concerning attorney/client privilege and work product immunity was immediately appealable).

For these reasons, we lack jurisdiction to consider defendants' arguments regarding overbreadth and relevancy. Consequently, those portions of defendants' appeal are dismissed.

II. Medical Review Privilege

We now turn our attention to those issues on appeal that are properly before us. We begin by examining the applicability of North Carolina's medical review privilege codified in N.C. Gen.Stat. § 131E–95.

A. Statutory Framework

As this Court has recognized, “N.C. Gen.Stat. § 131E–95, part of the Hospital Licensure Act, creates protection for medical review committees in civil actions against hospitals.” Woods, 198 N.C.App. at 124, 678 S.E.2d at 791. The privilege is set out in N.C. Gen.Stat. § 131E–95(b), which provides, in pertinent part, as follows:

The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public records within the meaning of G.S. 132–1 ... and shall not be subject to discovery or

[748 S.E.2d 589]

introduction into evidence in any civil action against a hospital ... which results from matters which are the subject of evaluation and review by the committee.

N.C. Gen.Stat. § 131E–95(b) (2011).

“By its plain language, N.C. Gen.Stat. § 131E–95 creates three categories of information protected from discovery and admissibility at trial in a civil action: (1) proceedings of a medical review committee, (2) records and materials produced by a medical review committee, and (3) materials considered by a medical review committee.” Woods, 198 N.C.App. at 126, 678 S.E.2d at 791–92. The statute goes on to state, however, that “information, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee.” N.C. Gen.Stat. § 131E–95 (b).

N.C. Gen.Stat. § 131E–76 defines the term “[m]edical review committee” as

any of the following committees formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing:

a. A committee of a state or local professional society.

b. A committee of a medical staff of a hospital.

c. A committee of a hospital or hospital system, if created by the governing board or medical staff of the hospital or system or operating under written procedures adopted by the governing board or medical staff of the hospital or system.

d. A committee of a peer review corporation or organization.

N.C. Gen.Stat. § 131E–76(5)(a)–(d) (2011).

On appeal from a trial court's discovery order implicating the medical review...