Hayes v. Premier Living, Inc.

• Decision Date: 20 February 2007
• Docket Number: No. COA06-661.,COA06-661.
• Citation: 641 S.E.2d 316
• Court: North Carolina Court of Appeals
• Parties: Freddy L. HAYES, Administrator of the Estate of Ina Hayes, Plaintiff v. PREMIER LIVING, INC., Premier Living and Rehab, LLC, Dove Healthcare, LLC, Chan Von Henner, Kevin Pennington, Allene Von Henner, and E. Autry Dawson, Sr., Defendants.

641 S.E.2d 316

Freddy L. HAYES, Administrator of the Estate of Ina Hayes, Plaintiff v. PREMIER LIVING, INC., Premier Living and Rehab, LLC, Dove Healthcare, LLC, Chan Von Henner, Kevin Pennington, Allene Von Henner, and E. Autry Dawson, Sr., Defendants.

No. COA06-661.

Court of Appeals of North Carolina.

February 20, 2007.

Appeal pursuant to N.C. Gen.Stat. § 7A-27(d) from the order granting plaintiff's motion to compel and denying defendants' motion for a protective order, entered 12 January 2006 by Judge Ola M. Lewis in Superior Court, Columbus County. Heard in the Court of Appeals 10 January 2007.

Yates, Mclamb & Weyher, L.L.P., by Michael C. Hurley and Christopher M. West, Raleigh, for defendant-appellants.

Gugenheim Law Offices, P.C., by Stephen J. Gugenheim, Raleigh, for plaintiff-appellee.

STROUD, Judge.

This is a wrongful death action arising from alleged nursing home neglect. Plaintiff is the administrator of the estate of the deceased, Ina Hayes, and is also Ms. Hayes' son. Defendants are the owners and operators of Premier Living & Rehabilitation Center (Premier Living) where Ms. Hayes resided.

Defendants appeal the trial court order granting plaintiff's motion to compel production of three incident reports prepared by Premier Living staff and denying defendants' motion for a protective order pursuant to the peer review privilege set forth in N.C. Gen. Stat. §§ 90-21.22A and 131E-107. This Court must now determine whether the trial court abused its discretion by concluding that the incident reports are not privileged. Because defendants failed to show that the reports were part of the proceedings of Premier Living's quality assurance committee, or were considered or produced by Premier Living's quality assurance committee, we hold that the trial court did not abuse its discretion by granting plaintiff's motion to compel.

Plaintiff's complaint alleges that defendants were negligent in their care of Ms. Hayes and that defendants' negligence caused Ms. Hayes to fracture her hip and eventually resulted in her death. During discovery, plaintiff sought production of incident reports documenting several falls by Ms. Hayes at Premier Living. Although defendants identified three such reports, defendants refused to produce the reports on the basis that they are protected by the peer review privilege. On 1 December 2005, plaintiff filed a motion to compel production of the incident reports. Defendants filed a motion for a protective order on 5 January 2006.

Incident reports are prepared by Premier Living nursing staff following "unusual occurrences" and document the factual circumstances surrounding each occurrence, including a description of the incident, possible causes, and resulting injuries. In this case, defendant identified three incident reports involving Ms. Hayes during the relevant time period. The disputed incident reports were completed on 10 January 2002, 9 August 2002, and 19 August 2002.

In support of their motion for a protective order, defendants presented the affidavit of Linda Parnell, the administrator of Premier Living. In her affidavit, Ms. Parnell stated that Premier Living employs a "Continuous Quality Improvement Team" (CQI Team), which is a committee of administrators and health care providers who assess the quality of care provided to its residents. During the time Ms. Hayes resided at Premier Living, the CQI team met quarterly. Ms. Parnell also stated that the purpose of preparing incident reports is "to maintain and improve the quality of care of residents at the facility." However, during her deposition, Ms. Parnell explained that individual incident reports are "not typically" discussed at CQI Team meetings; rather, the team discusses "trends." The nurses who prepare incident reports are not members of the CQI Team.

On 9 January 2006, the trial court heard arguments on plaintiff's motion to compel and defendants' motion for a protective order, during which the court reviewed the disputed incident reports in camera. Thereafter, the court ruled that the incident reports are discoverable, entering a written order on 12 January 2006. In its order, the trial court found that "[d]efendants failed to produce any evidence that the incident reports (1) were part of the proceedings of its medical review committee, (2) were records and materials produced by its medical review committee, or (3) were considered by its medical review committee." Defendants appealed, arguing that the incident reports are privileged because "the purpose behind the preparation of the documents was for peer review."

"Interlocutory orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). Most discovery orders are interlocutory. See Mims v. Wright, 157 N.C.App. 339, 341, 578 S.E.2d 606, 608 (2003).

"Generally, there is no right of immediate appeal from interlocutory orders and judgments." Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). However, interlocutory orders are immediately appealable if "delaying the appeal will irreparably impair a substantial right of the party." Hudson-Cole Dev. Corp. v. Beemer, 132 N.C.App. 341, 344, 511 S.E.2d 309, 311 (1999). An interlocutory discovery order affects a substantial right when "a party asserts a statutory privilege which directly relates to the matter to be disclosed under [the order], and the assertion of such privilege is not otherwise frivolous or insubstantial." Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. Here, the interlocutory discovery order compels production of reports that may be privileged pursuant to N.C. Gen.Stat. §§ 90-21.22A and 131E-107. Thus, the order affects a "substantial right" and is immediately appealable to this Court.

N.C. Gen.Stat. §§ 90-21.22A and 131E-107 restrict discovery of certain materials in civil actions against providers of health care services and nursing homes respectively. Premier Living's facility in which Ms. Hayes resided is a "nursing home" as defined by N.C. Gen.Stat. § 131E-101(6). Specifically, N.C. Gen.Stat. § 131E-107 provides that "[t]he proceedings of a quality assurance, medical, or peer review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public records ... and shall not be subject to discovery or introduction into evidence" in these actions. (Emphasis added.)¹ The protection set forth in these sections is commonly known as the peer review privilege.

The peer review privilege is "designed to encourage candor and objectivity in the internal workings of medical review committees." Shelton v. Morehead Mem'l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986) (emphasis added). Whether a document is protected by the peer review privilege is determined at the time of the trial court order, see Windman v. Britthaven, Inc., 173 N.C.App. 630, 633, 619 S.E.2d 522, 524 (2005) (holding that materials produced by a nursing home review committee were not privileged because N.C. Gen.Stat. § 131E-107 was not in effect at the time the trial court filed its order compelling discovery), and the party asserting the privilege bears the burden of proof, cf. Wachovia Bank, N.A. v. Clean River Corp., ___ N.C.App. ___, ___, 631 S.E.2d 879, 882 (2006) (stating that "[t]he party seeking either attorney-client privilege or work-product...