Roadway Express, Inc. v. Hayes

• Citation: 631 S.E.2d 41
• Decision Date: 20 June 2006
• Docket Number: No. COA05-1204.,COA05-1204.
• Court: North Carolina Court of Appeals
• Parties: ROADWAY EXPRESS, INC., Plaintiff, v. Mickey Joe HAYES and Inzone, Inc., d/b/a Inzone, Defendants, v. Candace Sue Horn, Individually and as Administratrix of the Estate of Mark Joseph Horn, Intervening Plaintiff.

631 S.E.2d 41

ROADWAY EXPRESS, INC., Plaintiff, v. Mickey Joe HAYES and Inzone, Inc., d/b/a Inzone, Defendants, v. Candace Sue Horn, Individually and as Administratrix of the Estate of Mark Joseph Horn, Intervening Plaintiff.

No. COA05-1204.

Court of Appeals of North Carolina.

June 20, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by Defendant Mickey Joe Hayes from orders entered 17 June and 30 June 2005 by Judge Anderson D. Cromer and Judge Ronald E. Spivey, respectively, in Superior Court, Forsyth County. Heard in the Court of Appeals 9 May 2006.

Womble, Carlyle, Sandridge & Rice by Jack M. Strauch, Winston-Salem, for plaintiff-appellee Roadway Express, Inc.

Teague, Rotenstreich & Stanaland, L.L.P. by Kenneth B. Rotenstreich and Paul A. Daniels, Greensboro, for the defendant-appellant Mickey Joe Hayes.

Brian E. Gates, Winston-Salem, for defendant-appellee Inzone.

Law Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills, Winston-Salem, for intervening plaintiff-appellee Constance Sue Horn.

WYNN, Judge.

The Fifth Amendment provides a shield against self-incrimination. U.S. CONST. amend. V. In this case, Defendant argues that the Fifth Amendment protects him from producing (1) his medical records and (2) factual information regarding medications that he may have been under the influence of at the time of the accident. We uphold the order to produce his medical records but reverse the order compelling him to disclose factual information regarding his use of medications.

The facts indicate that on 7 March 2004, Defendant Mickey Hayes's vehicle collided with a tractor trailer driven by Mark Joseph Horn and owned by Plaintiff Roadway Express, Inc. As a result of the collision, the tractor trailer struck a bridge guardrail causing the tractor to detach from the trailer, fall off the bridge and overturn before landing on an embankment below the bridge. Mr. Horn died at the scene of the accident.

Plaintiffs Roadway Express, Inc. and Constance Horn, widow of the truck driver, brought an action against Mr. Hayes and Inzone, Inc. Plaintiffs alleged that Mr. Hayes was legally intoxicated from beverages that he had consumed at Inzone nightclub/sports bar from which Plaintiffs sought recovery based on its alleged willful, wanton, and reckless disregard for the rights of others.

During discovery, Plaintiff Roadway Express requested all medical records regarding Defendant Hayes's medical treatment after the accident. Defendant objected to the discovery request, arguing that his medical records were protected by the physician-patient privilege and his Fifth Amendment right against self-incrimination.

The trial judge ordered Defendant to produce the requested medical records under seal and conducted an in camera inspection. Afterwards, on 17 June 2005, the trial judge ordered Defendant to provide copies of the records to Plaintiff on the condition that:

The records and the information contained therein are not to be shared with anyone other than experts retained by the parties (but not if such experts are also retained by the State to assist with the criminal prosecution of Hayes arising out of the subject collision).

Plaintiff also served a set of admissions on Defendant to:

1. Admit that on March 6, 2004, you took the prescription medication diazepam.

2. Admit that on March 7, 2004, you took the prescription medication diazepam.

3. Admit that during the early morning of March 7, 2004, you were under the influence of the prescription medicine diazepam.

4. Admit that on March 7, 2004, the prescription medication diazepam was present in your system.

5. Admit that you consumed alcoholic beverages during the late evening of March 6, and the early morning of March 7, 2004, while knowing diazepam was present in your system.

Additionally, Plaintiff, through interrogatories, asked whether Defendant had been taking any prescription medications at the time of the accident, including diazepam. Defendant refused to respond to Plaintiff's request for admissions or interrogatories relating to any prescription drugs he may have been under the influence of at the time of the accident, arguing that such information was protected under the physician-patient privilege and the Fifth Amendment.

On 23 June 2005, Plaintiff filed a motion to compel production of Defendant's responses to Plaintiff's request for admissions and interrogatories. On 30 June 2005, the trial judge granted Plaintiff's motion to compel and ordered Defendant to serve complete responses to Plaintiff's request for admissions and interrogatories.

From the 17 June 2005 order to produce his medical records, and the 30 June 2005 order to respond to Plaintiff's request for admissions and interrogatories, Defendant appeals. But we note that discovery orders are interlocutory and therefore not immediately appealable unless they affect a substantial right. Isom v. Bank of America, N.A., ___ N.C.App. ___, ___, 628 S.E.2d 458, 461 (2006). However, "when ... 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[.]" Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). Moreover, a trial judge's ruling requiring a party to provide evidence over a Fifth Amendment objection is also immediately appealable. See Staton v. Brame, 136 N.C.App. 170, 523 S.E.2d 424 (1999) (reversing trial court's order compelling Defendant's testimony in civil action where Defendant asserted Fifth Amendment privilege against self-incrimination). Here, 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.

The issues on appeal are (I) Do the Fifth Amendment privilege against self-incrimination and the physician-patient privilege shield Defendant from producing "any and all records related to any medical treatment that [he] received as a result of the automobile accident" and (II) Does the Fifth Amendment shield Defendant from providing factual information regarding medications that he may have been under the influence of at the time of the accident?

I.

Fifth Amendment protection applies in any type of proceeding, whether it is criminal, civil, administrative, investigatory, or adjudicatory. Maness v. Meyers, 419 U.S. 449, 463-64, 95 S.Ct. 584, 42 L.Ed.2d 574 586-87 (1975). The protection exists not only for evidence which may directly support a criminal conviction, but for "information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution." Id. at 461, 95 S.Ct. at 592, 42 L.Ed.2d. at 585 (citation omitted). However, the Fifth Amendment privilege only applies to testimonial or communicative acts. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908, 914 (1966).

In Schmerber, the United States Supreme Court held that blood test evidence was neither testimonial nor communicative and therefore the evidence was admissible. Id. at 765, 86 S.Ct. at 1833, 16 L.Ed.2d. at 916-17. "[B]oth federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements . . . the privilege is a bar against compelling `communications' or `testimony', but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it." Id. at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916.

Indeed, "North Carolina has long recognized the distinction between compulsory testimonial evidence and compulsory physical disclosure." State v. Strickland, 276 N.C. 253, 260, 173 S.E.2d 129, 133 (1970).

"The established rule in this jurisdiction is that `(t)he scope of the privilege against self-incrimination, in history and in principle, includes only the process of testifying by word of mouth or in writing, i.e., the process of disclosure by utterance. It has no application to such physical evidential circumstances as may exist on the accused's body or about his person.'"

Id. (quoting State v. Paschal, 253 N.C. 795, 797, 117 S.E.2d 749, 750-751 (1961)).

The facts of this case are analogous to those in Schmerber. The medical records sought by Plaintiff include a hospital lab analysis and a State Bureau of Investigation lab analysis of Defendant's blood taken after the accident. As in Schmerber, the results of Defendant's blood test are not protected under the Fifth Amendment because the results of the test are neither testimonial nor communicative. Under the facts of this case, Defendant's Fifth Amendment right against self-incrimination does not shield him from producing his medical records.

Likewise, Defendant's medical records are not protected by the physician-patient privilege. Section 8-53 of the North Carolina General Statutes provides that "[n]o 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 . . . or to do any act for him as a surgeon[.]" N.C. Gen.Stat. § 8-53 (2005). Medical records are covered by the statute to the extent that the records contain entries made by physicians and surgeons, or under their direction, that include information and communications obtained by the doctor for the purpose of providing care to the patient. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 38, 125 S.E.2d 326, 331 (1962).

The physician-patient privilege is strictly construed and the patient bears the burden of...