Mims v. Wright
Decision Date | 15 April 2003 |
Docket Number | No. COA02-902.,COA02-902. |
Citation | 578 S.E.2d 606,157 NC App. 339 |
Parties | Jennifer Denise MIMS, Plaintiff, v. Sharon Kaye WRIGHT, Defendant. |
Court | North Carolina Court of Appeals |
Gray, Newell, Johnson & Blackmon L.L.P., by Mark V.L. Gray, Greensboro, for plaintiff-appellee.
Davis & Hamrick, L.L.P., by H. Lee Davis, Jr. and Ann C. Rowe, Winston-Salem, for defendant-appellant.
Sharon Kaye Wright (defendant) appeals a discovery order dated 2 April 2002 requiring the disclosure of her medical records to Jennifer Denise Mims (plaintiff).
On 2 August 2001, plaintiff filed a complaint alleging defendant negligently operated a vehicle on 26 August 1998, causing a collision with the vehicle driven by plaintiff that resulted in personal injuries to plaintiff. In her answer filed 1 October 2001, defendant denied any negligence but argued in the alternative that to the extent she was negligent, plaintiff's claim was barred by her own contributory negligence. In plaintiff's first request for production of documents dated 15 November 2001, defendant was asked to turn over to plaintiff copies of "all [her] medical records ... covering the period five (5) years proceeding August 26, 1998 to the present day." Following defendant's objection to this request, plaintiff filed a motion to compel discovery.
In an order dated 2 April 2002, the trial court made the following findings:
The issues are whether: (I) the discovery order appealed from affects a substantial right; (II) defendant impliedly waived the physician-patient privilege; and (III) the interests of justice demanded disclosure even if the privilege was not waived.
522 S.E.2d at 581; see also Lockwood v. McCaskill, 261 N.C. 754, 757, 136 S.E.2d 67, 69 (1964) ( ). Accordingly, defendant's appeal is properly before this Court. We now consider whether the trial court abused its discretion in granting plaintiff's motion to compel production of defendant's medical records. See Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C.App. 589, 595, 551 S.E.2d 873, 877 (2001) ( ).
Pursuant to Rule 26(b)(1) of the North Carolina Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party." N.C.G.S. § 1A-1, Rule 26(b)(1) (2001). Any unprivileged matter that is relevant is thus discoverable. On the other hand, if the matter of which discovery is sought is privileged, it is not discoverable, even if relevant, "unless the interests of justice outweigh the protected privilege." Shellhorn v. Brad Ragan, Inc., 38 N.C.App. 310, 314, 248 S.E.2d 103, 106 (1978).
Defendant argues her medical records were protected by the physician-patient privilege and that the trial court erred in concluding she had impliedly waived that privilege "by driving." We agree. Defendant's medical records are protected by N.C. Gen.Stat. § 8-53, which sets forth the physician-patient privilege. See N.C.G.S. § 8-53 (2001). Because this statutory privilege is to be strictly construed, Sims v. Insurance Co., 257 N.C. 32, 36-37, 125 S.E.2d 326, 329-30 (1962), the patient bears the burden of establishing the existence of the privilege and objecting to the discovery of such privileged information, Adams v. Lovette, 105 N.C.App. 23, 28, 411 S.E.2d 620, 624, aff'd, 332 N.C. 659, 422 S.E.2d 575 (1992) (per curiam). Moreover, the privilege is not absolute and may be waived, either by express waiver or by waiver implied from the patient's conduct. Id. at 28-29, 411 S.E.2d at 624.
rev'd, 351 N.C. 348, 524 S.E.2d 804 (2000) (per curiam); see also State v. Smith, 347 N.C. 453, 461-62, 496 S.E.2d 357, 362 (1998) ( ); ...
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