Spangler v. Olchowski
| Decision Date | 18 December 2007 |
| Docket Number | No. COA07-158.,COA07-158. |
| Citation | 654 S.E.2d 507 |
| Court | North Carolina Court of Appeals |
| Parties | Gary W. SPANGLER, Executor of the Estate of Jessica J. Spangler, Plaintiff v. Steven E. OLCHOWSKI, M.D.; Conrad J.R. Miranda, IV, M.D.; Sina Surgical Associates, P.A.; and Atlantic Bariatric Center, Incorporated, Defendants. |
Jennifer L. Umbaugh, Wrightsville; and Melissa A. Pollock, Wilmington, for plaintiff appellant.
Robert S. Shields, Jr., and Jonathan T. Mlinarcik, New Bern, for Steven E. Olchowski, M.D., defendant appellee.
Crawford & Crawford, LLP, by Robert O. Crawford III, and Renee B. Crawford, Raleigh, for Sina Surgical Associates, P.A., defendant appellee.
On 13 November 2002, Jessica Spangler ("decedent") filed a medical malpractice action against Steven E. Olchowski, M.D. ("Olchowski"), Conrad J.R. Miranda, M.D. ("Miranda"), Sina Surgical Associates, P.A. ("Sina"), and Atlantic Bariatric Center, Inc. ("Atlantic Bariatric") (collectively "defendants"). On 15 January 2006, decedent died of unrelated causes. Her father, Gary W. Spangler, as executor of her estate, was substituted as the party-plaintiff ("plaintiff") on 10 February 2003.
The action concerns a gastric bypass surgery performed on 3 July 2001 by Olchowski, during which plaintiff alleges that Olchowski performed a modified Rutledge procedure with an afferent and efferent loop to a gastric pouch ("loop gastric bypass") instead of the laparoscopic Roux-en-y gastric bypass procedure ("RNY bypass") to which decedent had consented. The complaint alleges that after the surgery, Olchowski attempted to conceal the true nature of the procedure that he performed; that due to complications related to the 3 July 2001 surgery, decedent was forced to undergo a second procedure to revise the original surgery; and that as a result of the actions of Olchowski,
[decedent] suffered unnecessary conscious physical pain and emotional distress; has been forced to undergo multiple painful and therapeutic and diagnostic tests and procedures and prolonged hospitalizations; was forced to undergo a major abdominal surgery; has incurred significant reasonable and necessary medical and other related expenses; had to withdraw from her college studies resulting in a delay in completing her education and financial loss; has suffered a loss of enjoyment of life[.]
During discovery, Sina filed motions to compel discovery of all medical records for the ten-year period preceding 3 July 2001 the date of decedent's surgery, and medical records up to the date of trial. During this period of time, decedent had been undergoing substance abuse treatment. On 22 September 2005, the trial judge granted Sina's motion and ordered plaintiff to produce to defendants, under seal, complete medical records from all known medical providers in their entirety from 3 July 1991 through 15 September 2005. Plaintiff did not appeal this order.
Thereafter, on 8 May 2006, plaintiff filed a motion for a protective order, seeking: (1) to limit the time frame for production of medical records to 5 July 1991 until 15 September 2005; and (2) to protect from disclosure all medical records and health care provider testimony relating to decedent's substance abuse treatment.
A hearing on the motion was held on 25 August 2006. At this hearing, plaintiff made an oral motion, pursuant to N.C. Gen.Stat. § 1A-1, Rule 60(b) (2005), for the trial judge to reconsider the 22 September 2005 order. On 29 September 2006, the trial judge ordered plaintiff to (1) produce complete, updated medical records from 15 September 2005 until 6 January 2006, the date of decedent's death; and (2) make sixteen witnesses available for deposition, including decedent's substance abuse treatment providers. On 13 October 2006, the trial judge entered an order denying plaintiff's request for the court to conduct an in camera review of decedent's medical records, denying plaintiff's motion to reconsider the 22 September 2005 order, and denying plaintiff's motion for a protective order to limit the scope of discovery, finding that:
A. Jessica Spangler's Estate is seeking damages for pain and suffering and emotional distress.
B. Mental suffering often results in substance abuse and records relating to substance abuse treatment may be relevant to mental pain.
C. In that the Plaintiff has put before the Court a claim for emotional distress, all medical records which the Plaintiff asserts are protected from disclosure under 42 CFR § 2.1[sic] et seq. and N.C.G.S. § 122C-52, et seq. are discoverable and shall be produced.
The 13 October 2006 order provides that all records tendered by plaintiff are to remain under seal pursuant to the 25 August 2006 order.
On appeal, plaintiff contends that the trial court erred by (1) ordering disclosure of decedent's substance abuse treatment records; (2) ordering plaintiff to make decedent's substance abuse treatment providers available for deposition; and (3) refusing to conduct an in camera review of all of decedent's substance abuse treatment records. Defendants filed a motion to dismiss the appeal. Plaintiff filed a motion to strike portions of defendants' motion to dismiss.
Defendants contend that plaintiff's appeal should be dismissed on the following grounds: (1) the orders from which plaintiff appeals are interlocutory; and (2) plaintiff's appeal is moot.
First, while it is generally true that discovery orders are interlocutory and therefore not immediately appealable, Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C.App. 682, 685, 513 S.E.2d 598, 600 (1999), aff'd, 351 N.C. 349, 524 S.E.2d 804 (2000) (per curiam), such orders are immediately appealable if "delaying the appeal will irreparably impair a substantial right of the party." Hudson-Cole Dev. Corp. v. Beemer, 132 N.C.App. 341, 344, 511 S.E.2d 309, 311 (1999). "[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[.]" Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). Accordingly, we conclude that the orders from which plaintiff appeals affect a substantial right and are immediately appealable.
Next, we address defendants' argument that plaintiff's appeal should be dismissed as moot given that defendants have withdrawn their requests for production of medical records from the time period of 15 September 2005 until decedent's date of death and plaintiff has either consented to production of all medical records before 15 September 2005, or in the alternative, that plaintiff has failed to preserve her objection to the 22 September 2005 order, which requires plaintiff to produce all medical records up until 15 September 2005.
Irrespective of whether plaintiff has agreed to produce all records through the date of 15 September 2005, plaintiff did not appeal the 22 September 2005 order. We have consistently held that judgments involving misapplication of the law "may be corrected only by appeal and Rule 60(b) motions cannot be used as a substitute for appeal." Burton v. Blanton, 107 N.C.App. 615, 617, 421 S.E.2d 381, 383 (1992). Therefore, plaintiff's reliance on an oral motion for the trial judge to reconsider the 22 September 2005 order pursuant to Rule 60(b) is misplaced. Plaintiff is bound by the 22 September 2005 order and must produce all medical records, including the substance abuse treatment records, up until 15 September 2005.
Nonetheless, because Olchowski has not withdrawn his request to depose providers of substance abuse treatment and neither Miranda nor Atlantic Bariatric have withdrawn any discovery requests, we find that a current controversy still remains as to: (1) the ability of Olchowski, Miranda, and Atlantic Bariatric to depose decedent's substance abuse treatment providers; and (2) whether plaintiff must disclose to Miranda and Atlantic Bariatric records relating to substance abuse treatment of decedent between 15 September 2005 and 15 January 2006. Accordingly, defendants' motion to dismiss is denied.
Plaintiff's motion to strike portions of defendants' motion to dismiss is summarily denied, as we find that the challenged information contained in defendants' motion to dismiss is related to the procedural context of the case.
First, plaintiff contends that because confidential information relating to decedent's substance abuse treatment is protected from disclosure under federal and state law, the trial court erred by denying plaintiff's motion for a protective order, and respectively, by ordering plaintiff to disclose such information. Because we find explicit statutory exceptions that authorize such disclosure as well as an implicit waiver by plaintiff of the protections generally afforded to confidential communications between a patient and the provider of substance abuse treatment, we disagree.
Since the analysis is the same with respect to all confidential information related to decedent's substance abuse treatment, we address together plaintiff's requests to prohibit depositions of decedent's substance abuse treatment providers and to exclude all records related to such treatment.
We begin the analysis with an overview of the statutory scheme. Confidential communications between a patient and provider of substance abuse treatment are generally protected from disclosure pursuant to three separate statutory and regulatory provisions: (1) the general patient-physician privilege conferred by N.C....
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