Nicholson v. Thom

• Decision Date: 16 August 2011
• Docket Number: NO. COA10-1433,COA10-1433
• Court: North Carolina Court of Appeals
• Parties: STEPHEN C. NICHOLSON, Individually and as Administrator of the Estate of GERALDINE ANNE NICHOLSON, Plaintiff, v. ARLEEN KAYE THOM, M.D., Defendant.

STEPHEN C. NICHOLSON, Individually and as Administrator of the Estate of GERALDINE ANNE NICHOLSON, Plaintiff, v. ARLEEN KAYE THOM, M.D., Defendant.

NO. COA10-1433

NORTH CAROLINA COURT OF APPEALS

Dated: August 16, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Robeson County No. 07 CVS 1845

Appeal by defendant from order entered 7 April 2010 by Judge Ola M. Lewis in Robeson County Superior Court. Heard in the Court of Appeals 14 April 2011.

Comerford & Britt, L.L.P., by John A. Chilson and Cliff Britt, and Musselwhite, Musselwhite, Branch & Grantham, by James W. Musselwhite, for plaintiff-appellee.

Young Moore and Henderson P.A., by William P. Daniell, Elizabeth P. McCullough, and Kelly E. Street, for defendant-appellant.

ERVIN, Judge.

Defendant Arleen Kaye Thom, M.D., appeals from an order entered by the trial court requiring Defendant to disclose certain information relating to her brachial plexus neuropathy and related insurance disability application. On appeal,Defendant contends that the trial court's order violated her rights under the physician-patient privilege. After careful consideration of Defendant's challenge to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

A. Substantive Facts

Geraldine Anne Nicholson was diagnosed with small cell rectal cancer in June 2005. On 28 June 2005, Ms. Nicholson underwent a two-part surgery at Cape Fear Valley Medical Center. The first procedure, performed by Dr. Myron Strickland, consisted of a complete abdominal hysterectomy and the removal of Ms. Nicholson's ovaries. The second procedure, which was performed by Defendant, entailed the removal of Mrs. Nicholson's rectum and part of her colon. After Ms. Nicholson was discharged from the hospital on 5 July 2005, she began radiation and chemotherapy treatment.

After presenting as too weak to undergo additional radiation treatment on 31 August 2005, Ms. Nicholson was sent to Cape Fear's emergency department, where she was admitted with complaints of abdominal pain, weakness, and neutropenia. An abdominal x-ray taken later that day revealed the presence of a ribbon-shaped object projecting over the right iliac crest. ACT scan performed on 3 September 2005 showed what appeared to be a "surgical foreign body" in Ms. Nicholson's abdomen. On 7 September 2005, Ms. Nicholson underwent an exploratory laparotomy, during which an intraperitoneal foreign body (later identified as a surgical sponge) was removed. Ms. Nicholson was discharged on 4 October 2005.

Mrs. Nicholson was readmitted to Cape Fear on three different occasions between 29 October 2005 and 13 July 2006, at which point she was diagnosed with "metastatic disease of the brain." Although Ms. Nicholson received five radiation treatments after being diagnosed with brain cancer, she died on 12 October 2006.

In August 2005, Defendant experienced significant pain and numbness in her left hand and arm. Subsequently, Defendant was diagnosed with brachial plexus neuropathy. On 26 September 2005, Defendant applied to her insurance carrier, UnumProvident, for disability benefits.

B. Procedural History

On 21 May 2008, Plaintiff Stephen C. Nicholson, individually and as administrator of the estate of his deceased wife, Ms. Nicholson, initiated this medical malpractice action against Defendant based upon her allegedly "negligent[] fail[ure] to remove a surgical sponge from the deceased duringthe surgery performed June 28, 2005." In his complaint, Plaintiff sought compensatory damages and damages for loss of consortium. On 30 July 2008, Defendant filed an answer in which she denied the material allegations set forth in Plaintiff's complaint.

In his second request for production of documents, which was served on 8 January 2010, Plaintiff requested: (1) "[a] copy of [Defendant's] complete application for disability with UNUM, as well as any related correspondence between [Defendant] and UNUM regarding the status of her claim" and (2) "[a] copy of all of [Defendant's] medical records that relate or pertain to the brachial plexus neuropathy in her left arm that she sustained on or about August 17, 2005." On the same date, Plaintiff served his third set of interrogatories, in which he requested that Defendant: (1) "[d]escribe with full details the injury [she] claim[ed] [to have] suffered on or about August 17, 2005 to [her] left brachial plexus, including but not limited to, the number of nerve roots affected, the mechanism of [the] injury, and the nature of the injury" and (2) "[p]rovide the full name, business name, business address, telephone number, dates of treatment, and a summary of care provided for all physicians who provided [her] with medical care for the brachialplexus injury [she] claim[ed] [she] suffered on or about August 17, 2005[.]"

On 10 February 2010, Defendant filed responses to these requests for production and interrogatories in which she objected to providing the requested information on the grounds that they "s[ought] information that is protected by the [physician-patient] privilege" and that the requested information was " not reasonably calculated to lead to the discovery of admissible evidence and [was] irrelevant to the issue of whether the Defendant complied with the applicable standard of care in this case." On 17 February 2010, Plaintiff filed a motion to compel Defendant to provide the requested discovery. In response, Defendant's attorney submitted an affidavit in which he stated that he had "reviewed" the information sought by Plaintiff's discovery requests and believed that the information in question was protected by the physician-patient privilege.

On 24 February 2010, the trial court conducted a hearing concerning Plaintiff's motion to compel. On 5 March 2010, the trial court entered an order requiring Defendant to produce the requested documents under seal for purposes of an in camera review. After reviewing the relevant documents in camera, the trial court entered an order on 7 April 2010 determining that"the Documents should be produced" subject to the condition that "the Documents [were] to remain sealed with the Court and [were] only to be disclosed to Plaintiff's counsel." On the same date, Defendant noted an appeal to this Court from the trial court's order and sought a stay pending the resolution of her appeal. The trial court granted Defendant's stay motion on the grounds that "the production of the documents affects a substantial right of Defendant [] and thus, the Order Compelling Discovery is immediately appealable[.]"

II. Legal Analysis

A. Appealability

Prior to addressing the Defendant's challenge to the trial court's order on the merits, we must resolve the preliminary issue of whether the trial court's order is properly before this Court for review at this time. As the Supreme Court has explained, "[a]n 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); accord Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (1988) (stating that, "[a]s a general rule, an order compelling discovery is not immediately appealable because it is interlocutory and does notaffect a substantial right which would be lost if the ruling is not reviewed before final judgment"), disc. review denied, 323 N.C. 704, 377 S.E.2d 225 (1989). However, discovery orders are immediately appealable when they "deprive the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered." Cook v. Bankers Life & Casualty Co., 329 N.C. 488, 491, 406 S.E.2d 848, 850 (1991). In the event that "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" and is subject to immediate appellate review. Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. As a result of the fact that the trial court's order requires Defendant to disclose information that she claims to be subject to the physician-patient privilege, the trial court's order is properly before this Court on an interlocutory basis. See Midkiff v. Compton, ___ N.C. App. ___, ___, 693 S.E.2d 172, 174 (holding that, "[b]ecause 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"), cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010); RoadwayExpress, Inc. v. Hayes, 178 N.C. App. 165, 168, 631 S.E.2d 41, 44 (2006) (holding that, "because Defendant Hayes asserts his Fifth Amendment privilege against self-incrimination and the physician-patient privilege as reasons for not producing documents and responding to Plaintiff's discovery requests, the orders on appeal are immediately appealable"); Mims v. Wright, 157 N.C. App. 339, 341-42, 578 S.E.2d 606, 608 (2003) (holding that a discovery order that compelled disclosure of records which were alleged to be protected by the physician-patient privilege affected a substantial right and was immediately appealable).

B. Order Compelling Discovery

On appeal, Defendant contends that the trial court erred by compelling her to produce the requested information on the grounds that this information is "protected by [N.C. Gen. Stat.] § 8-53," which codifies the physician-patient privilege, and, thus, is not "discoverable." Ordinarily, the...