Midkiff v. Compton

• Decision Date: 18 May 2010
• Docket Number: No. COA09-254.,COA09-254.
• Citation: 693 S.E.2d 172
• Parties: Audrey Anne MIDKIFF, Plaintiff-Appellant,v.John Michael COMPTON, Defendant-Appellee.
• Court: North Carolina Court of Appeals

693 S.E.2d 172

Audrey Anne MIDKIFF, Plaintiff-Appellant,v.John Michael COMPTON, Defendant-Appellee.

No. COA09-254.

Court of Appeals of North Carolina.

May 18, 2010.

Appeal by Plaintiff from order entered 27 October 2008 by Judge Jack W. Jenkins in Superior Court, Carteret County. Heard in the Court of Appeals 30 September 2009.

Wheatly, Wheatly, Weeks & Lupton, P.A., by Christopher L. Beacham and Stevenson L. Weeks, Beaufort, for Plaintiff-Appellant.

Hall, Rodgers, Gaylord, & Millikan, PLLC, by Dwight G. Rodgers, Jr. and Kathleen M. Millikan, Cary, for Defendant-Appellee.

McGEE, Judge.

Audrey Anne Midkiff (Plaintiff) filed a complaint on 17 April 2008, seeking to recover damages for personal injuries she sustained when she was struck by a vehicle driven by John Michael Compton (Defendant). Plaintiff alleged that, while she was jogging on the shoulder of Little Deep Creek Road in Newport on or about 25 November 2006, Defendant's vehicle ran off the pavement and struck her, running over her right foot and injuring her lower leg, foot, and ankle. Plaintiff alleged that Defendant was negligent in causing the injuries cited above, which resulted in “great pain of body and mind.”

Defendant filed an answer in which he admitted he drove his vehicle off the road but denied liability and alleged contributory negligence on the part of Plaintiff. Defendant served Plaintiff with interrogatories and requests for production of documents on 17 June 2008 requesting inter alia:

1. The office records of each physician or other health care provider consulted by Plaintiff within the last ten (10) years, including without limitation any chiropractors or ancillary health care providers consulted during such period.

...

3. The admission and discharge summary for each hospitalization of Plaintiff within the last ten (10) years.

Plaintiff objected to Defendant's first and third request for production of documents on the grounds that they were “unduly broad, overly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence in that [they sought] medical records pertaining to parts of [Plaintiff's] body not injured in the subject collision.” Plaintiff further asserted that the information sought was protected by the physician-patient privilege set forth under N.C. Gen.Stat. § 8-53 (2009). Without waiving the foregoing objection, Plaintiff provided three exhibits containing Plaintiff's medical records from Carteret General Hospital, Carteret Surgical Associates, and Carteret Foot & Ankle, which Plaintiff deemed related to the injuries alleged in her complaint.

Defendant filed a motion to dismiss Plaintiff's complaint, or in the alternative to compel discovery, on 11 September 2008. Through his motion, Defendant sought to compel discovery of all of Plaintiff's medical records for the past ten years, pursuant to Defendant's first and third discovery requests. Plaintiff filed a motion for a protective order on 16 September 2008. In the motion, Plaintiff sought to prevent discovery of the medical records in question, or in the alternative, request that the trial court review the records in camera to make a determination of which records were relevant to Plaintiff's claim and were, therefore, discoverable.

The trial court held a hearing on 29 September 2008 regarding the motions. At the hearing, Defendant argued that Plaintiff had waived her physician-patient privilege with respect to her entire medical history by filing lawsuit and “[bringing] her medical past into this arena.” Defendant did not know what information could be found in the medical records sought but asserted the records were necessary to the preparation of his defense. The trial court indicated a reluctance to conduct an in camera review because the judge presiding at the eventual trial of the case would be in a better position to make the necessary determinations regarding relevance of the documents.

The trial court entered an order on 27 October 2008 ordering inter alia:

1. That Defendants' [sic] Motion to Dismiss is DENIED;

2. That Defendants' [sic] Motion to Compel Discovery is ALLOWED and that the Plaintiff shall furnish Plaintiff's medical records from each medical provider seen by her for a period of five (5) years preceding the filing of this action and that said records shall be furnished to Defendants [sic] within 30 days of entry of this Order;

3. That Plaintiff's Motion for a Protective order is ALLOWED and that the release of Plaintiff's medical records shall be limited to Defendant's attorneys and their staff; and

4. That Plaintiff's Motion to Compel Discovery is DENIED.

Plaintiff appeals.

Timeliness of Appeal

We first address the issue of whether this appeal is properly before us. Ordinarily, discovery orders are interlocutory and are not subject to immediate appeal. Mims v. Wright, 157 N.C.App. 339, 341, 578 S.E.2d 606, 608 (2003). Orders that are interlocutory are subject to immediate appeal when they affect a substantial right of a party. Id. “ ‘[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right....’ ” Id. (quoting Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999)). Because the trial court in the present case ordered Plaintiff to disclose matters she had asserted were protected by the physician-patient privilege, the trial court's order is immediately appealable and is properly before us. See id. (holding that appeal from a discovery order compelling disclosure of records to which physician-patient privilege had been asserted affected a substantial right and was, therefore, immediately appealable); see also, Sharpe v. Worland, 351 N.C. at 166, 522 S.E.2d at 581; Lockwood v. McCaskill, 261 N.C. 754, 757, 136 S.E.2d 67, 69 (1964) (“If and when Dr. Wright is required to testify concerning privileged matters at a deposition hearing eo instante the statutory privilege is destroyed. This fact precludes dismissal of the appeal as fragmentary and premature.”).

Standard of Review

When reviewing a trial court's ruling on a discovery issue, our Court reviews the order of the trial court for an abuse of discretion. Midgett v. Crystal Dawn Corp., 58 N.C.App. 734, 737, 294 S.E.2d 386, 388 (1982) (noting that ordinarily, orders relating to discovery are addressed to the discretion of the trial court and are to be reviewed for abuse of discretion). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

Privilege

Plaintiff first argues that the trial court abused its discretion by granting Defendant's motion to compel discovery because the documents sought were protected by physician-patient privilege. We disagree.

As a preliminary matter, we stress that, while the two are related, a determination of whether materials are subject to discovery is separate and independent of whether that evidence will later be admissible at trial. See N.C. Gen.Stat. § 1A-1, Rule 26 (2009); N.C. Gen.Stat. § 8C-1, Rules 402-03 (2009); see also Shellhorn v. Brad Ragan, Inc., 38 N.C.App. 310, 314, 248 S.E.2d 103, 106 (1978) (“A determination that particular information is relevant for discovery is not conclusive of its admissibility as relevant evidence at trial.”). The issue before us concerns N.C.G.S. § 1A-1, Rule 26 discovery of certain information and not an ultimate determination of relevance and admissibility at trial pursuant to N.C.G.S. § 1A-1, Rules 402-03.

N.C.G.S. § 1A-1, Rule 26 governs discovery and provides, in pertinent part, that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action [.]” N.C.G.S. § 1A-1, Rule 26(b)(1). N.C. Gen.Stat. § 8-53 (2009) creates a privilege for confidential communications between patients and their physicians and provides in pertinent part:

No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.... Confidential information obtained in medical records shall be furnished only on the authorization of the patient, or if deceased, the executor, administrator, or, in the case of unadministered estates, the next of kin. Any resident or presiding judge in the district, either at the trial or prior thereto, ... may ... compel disclosure if in his opinion disclosure is necessary to a proper administration of justice.

N.C.G.S. § 8-53.

Our Supreme Court has held that the physician-patient privilege is a qualified privilege and not an absolute one. Sims v. Charlotte Liberty Mutual Insurance Co., 257 N.C. 32, 38, 125 S.E.2d 326, 331 (1962). The privilege belongs to the patient and may be waived by the patient either expressly or impliedly. Capps v. Lynch, 253 N.C. 18, 22-23, 116 S.E.2d 137, 141 (1960).

Defendant argues that Plaintiff waived her physician-patient privilege by filing this action and thereby placing her physical condition at issue. Defendant relies on Jones v. Asheville Radiological Group, P.A., 134 N.C.App. 520, 518 S.E.2d 528 (1999) (Walker, J., dissenting in part) (dissent adopted by 351 N.C. 348, 524 S.E.2d 804 (2000)); Spangler v. Olchowski, 187 N.C.App. 684, 654 S.E.2d 507 (2007) and Mims. We find it helpful to consider the history of the physician-patient privilege in light of these three cases and therefore conduct the following review.

Capps, Cates, and Jones

In reviewing the history of the physician-patient privilege and circumstances amounting to waiver...