Medlin v. N.C. Specialty Hosp., LLC

• Decision Date: 01 April 2014
• Docket Number: No. COA13–818.,COA13–818.
• Citation: 756 S.E.2d 812
• Court: North Carolina Court of Appeals
• Parties: Jerry M. MEDLIN, Plaintiff, v. NORTH CAROLINA SPECIALTY HOSPITAL, LLC, Timothy N. Young, and North Carolina Eye, Ear, Nose & Throat, P.A., Defendants.

756 S.E.2d 812

Jerry M. MEDLIN, Plaintiff,

v.NORTH CAROLINA SPECIALTY HOSPITAL, LLC, Timothy N. Young, and North Carolina Eye, Ear, Nose & Throat, P.A., Defendants.

No. COA13–818.

Court of Appeals of North Carolina.

April 1, 2014.

Appeal by defendant North Carolina Specialty Hospital, LLC from orders entered 11 March 2013 and 14 March 2013 by Judge Paul G. Gessner in Superior Court, Durham County. Heard in the Court of Appeals 12 December 2013.

Bill Faison, for plaintiff-appellee.

Brown Law LLP, Raleigh, by Gregory W. Brown and Amy H. Hopkins, for defendant-appellant North Carolina Specialty Hospital, LLC.

STROUD, Judge.

Defendant North Carolina Specialty Hospital, LLC appeals orders addressing various motions regarding pretrial matters. For the following reasons, we affirm and remand to the trial court for determination of the reasonable amount of attorney fees incurred by plaintiff in responding to this appeal.

I. Background

On 5 January 2011, plaintiff filed a verified complaint against defendants for medical malpractice arising from plaintiff's cataract surgery, which was performed by defendant Timothy N. Young, an employee of defendant North Carolina Eye, Ear, Nose & Throat, P.A. Plaintiff alleged that he suffered permanent damage to his eye and extreme pain as a result of the negligent use of Methylene Blue in his eye. Methylene Blue is known to be toxic to the eye, but it was mistakenly used instead of VisionBlue, a non-toxic stain intended for use in eye surgery. On or about 21 March 2011, defendant North Carolina Specialty Hospital, LLC (“defendant Hospital”) answered plaintiff's complaint by denying liability and asserting three “affirmative defenses,” stated as a non-specific failure “to state facts sufficient to constitute a cause of action [;]” “all applicable statutes of limitation and repose[;]” and “[p]laintiff's failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.” Various pretrial motions, many involving discovery, ensued, and we will discuss only those relevant for purposes of this appeal.

On or about 7 March 2013, the trial court signed an order (“Order 1”) addressing pretrial motions made by the parties. The order provided that the Court allows the Plaintiff's Motion to Shorten Time for giving notice of this hearing so that the hearing may go forward. Moreover, the Court in its discretion and pursuant to Paragraph 13 of the Consent Amended Discovery Scheduling Order of 3 October 2012 extends the time set forth in Paragraph 6 of that Order through and including March 8, 2013. In its discretion the Court denies the Hospital's Motion For Protective Order regarding depositions noticed for March 8, 2013, and further in its discretion orders that the depositions of Joy Boyd and Cathy Pruitt and Randy Pisko, and the Civil Procedure Rule 30(b)(6) Deposition of the Hospital ... [shall go forward prior to 15 March 2013] under the terms and conditions as noticed by the Plaintiff.

Plaintiff's Motion to Compel Discovery is noticed for hearing March 11, 2013. To the extent Hospital's Motion For Protective Order is directed at the Notice of Hearing and/or the timing of the Notice of Hearing for March 11, 2013, in the Court's discretion the time for giving notice is shortened to the time when it was given, and Hospital's Motion is denied, and hearing on Plaintiff's Motion to Compel Discovery shall go forward on March 11, 2013 as noticed. The Court has not taken up the substantive issues raised by the Plaintiff's Motion to Compel or the Hospital's Motion for Protective Order relating to the Plaintiff's Motion to Compel, leaving those matters for hearing on March 11, 2013.

On 14 March 2013, the trial court entered an order (“Order 2”) regarding further pretrial motions. After reviewing numerous documents including motions, answers to interrogatories, a response to a request for production of documents, deposition transcripts, exhibits, and authority, the trial court found

as a Fact that in the course of the depositions of Joy Boyd and Cathy Pruitt Hospital's counsel instructed both not to answer questions regarding the process of the investigation undertaken as a result of events described in the Plaintiff's complaint. The Court, in its discretion orders that the questions Joy Boyd was instructed not to answer all be answered as if posed by written interrogatories and counsel for the Hospital shall serve answers on counsel for Plaintiff by 4 o'clock p.m. March 15, 2013 by fax, (email if agreed to by the parties) or hand delivery as follows

...

The trial court then recited portions of Joy Boyd's deposition and ordered

the questions Cathy Pruitt was instructed not to answer as set out below be answered as if posed by written interrogatories and counsel for the Hospital shall serve answers on counsel for Plaintiff by 4 o'clock p.m. March 15, 2013 by fax (email if agreed to by the parties) or hand delivery as follows....

The trial court then recited portions of Cathy Pruitt's deposition. The trial court went on to order

that the Hospital shall provide a “Privilege Log” with the specificity as requested in Paragraph 23 of the Plaintiff's First Set of Interrogatories to Hospital and shall serve the “Privilege Log” on counsel for Plaintiff by 4 o'clock p.m. March 15, 2013 by fax, (email if agreed to by the parties) or hand delivery.

The Court has reviewed Defendant Hospital's Exhibit 1 In Camera and in its discretion concludes that those documents were prepared pursuant to NCGS § 131E–95(b) and are protected from production by the peer review statues.

The Court having determined that eighteen of the twenty-one questions Joy Boyd and Cathy Pruitt were instructed not to answer are ordered answered, and that the privilege log sought by Plaintiff of the Hospital is ordered produced that Plaintiff is entitled to recover attorneys' fees and costs for bringing forward his Rule 37 Motion. The Court reserves ruling on the amount for further hearings into the time this matter required of Plaintiff's counsel including bringing forward both motions to compel, preparing for hearing, attending hearing and preparing this Order.

Defendant Hospital appeals Order 1, Order 2, and “the March 11, 2013 Oral Order [made between Order 1 and Order 2] requiring the production of peer-review privileged documentsfor in camera review by the trial judge and allowing the Plaintiff's Motion to Shorten Time to Notice Hearing on the Plaintiff's Motion to Compel” (“Ruling”).

II. Ruling

As to the Ruling on the plaintiff's Motion to Shorten Time to Notice Hearing on “the Plaintiff's Motion to Compel[,]” no written order was ever entered. This Court has previously determined that parties

cannot appeal from and this Court cannot consider an order which has not been entered. See Munchak Corp. v. McDaniels, 15 N.C.App. 145, 147–48, 189 S.E.2d 655, 657 (1972) (“The general rule is that, the mere ruling, decision, or opinion of the court, no judgment or final order being entered in accordance therewith, does not have the effect of a judgment, and is not reviewable by appeal or writ of error. As to oral opinions it is said that, a mere oral order or decision which has never been expressed in a written order or judgment cannot, under most authorities, support an appeal or writ of error. There is case authority in North Carolina for this rule. In Taylor v. Bostic, 93 N.C. 415 (1885) the trial court entered a written statement of his opinion, but no order or judgment was entered. The North Carolina Supreme Court held that the appeal was premature, there being no judgment and therefore no question of law presented from which appeal could be taken.” (citations, quotation marks, and brackets omitted)).

Dafford v. JP Steakhouse LLC, 210 N.C.App. 678, 683, 709 S.E.2d 402, 406 (2011). Accordingly, we will not consider any arguments on appeal regarding the trial court's oral Ruling. See id.

III. Interlocutory Order

Defendant Hospital acknowledges that its appeal is interlocutory but contends that a substantial right regarding “the production of privileged materials and testimony” would be affected should this Court not hear its appeal. Plaintiff contends that defendant Hospital's appeal asserts that it is regarding privileged material but in actuality the material is not privileged. Plaintiff further argues that defendant Hospital attempts to appeal a decision the trial court made upon its own request and other issues which in no way affect a substantial right.

Generally, orders denying or allowing discovery are not appealable since they are interlocutory and do not affect a substantial right which would be lost if the ruling were not reviewed before final judgment. As this Court has explained: Our appellate courts have recognized very limited exceptions to this general rule, holding that an order compelling discovery might affect a substantial right, and thus allow immediate appeal, if it either imposes sanctions on the party contesting the discovery, or requires the production of materials protected by a recognized privilege.

Britt v. Cusick ––– N.C.App. ––––, ––––, 753 S.E.2d 351, 354 (2014) (citations and quotation marks omitted). Accordingly, we consider defendant Hospital's appeal as to issues regarding privilege and these issues alone; see id., to the extent that plaintiff is correct, and defendant Hospital has invited its own “error” or raised issues which would not affect a substantial right, we will consider whether said issues are appropriate for our substantive review on appeal.

IV. Depositions Regarding Peer Review Privileged Matters

Defendant Hospital first contends that “[t]he Trial Court erred when it ruled that Plaintiff's Counsel could secure deposition testimony on Peer Review Privileged matters.” Defendant Hospital argues that the trial court erred in Order 2 when it

ordered that the depositions of Randi Shults, Joy Boyd, and Cathy Pruitt proceed without placing appropriate limitations on their scope to...