Virmani v. Presbyterian Health Services Corp.

Decision Date18 November 1997
Docket NumberNo. COA96-1051,COA96-1051
Citation127 N.C.App. 629,493 S.E.2d 310
Parties, 26 Media L. Rep. 1257 A. Ron VIRMANI, MD, Plaintiff, v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant. In re KNIGHT PUBLISHING COMPANY d/b/a The Charlotte Observer and John Hechinger.
CourtNorth Carolina Court of Appeals

Johnston, Taylor, Allison & Hord by Patrick E. Kelly and Greg C. Ahlum, Charlotte, for defendant.

Waggoner, Hamrick, Hasty, Monteith and Kratt, PLLC by John H. Hasty and G. Bryan Adams, III, Charlotte, for appellants Knight Publishing Company d/b/a The Charlotte Observer and John Hechinger.

Everett Gaskins Hancock & Stevens by Hugh Stevens and C. Amanda Martin, Raleigh, on behalf of The North Carolina Press Association and The News and Observer Publishing Company, amicus curiae.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Julian D. Bobbitt, Jr., Raleigh, on behalf of The North Carolina Hospital Association and The North Carolina Medical Society, amicus curiae.

McGEE, Judge.

This appeal presents the issue of whether the trial court erred in closing courtroom proceedings to the public and in sealing various documents presented to the court in a civil action filed by Dr. Ron Virmani (Dr. Virmani) against Presbyterian Health Services Corp. (Presbyterian) regarding suspension of Dr. Virmani's medical staff privileges at Presbyterian Hospital in Charlotte.

Shortly after Dr. Virmani filed this action, Presbyterian, in various pre-trial motions, moved to seal confidential medical peer review committee records and materials and to close court proceedings in which these records and materials were introduced or discussed. The motions were granted pursuant to N.C. Gen.Stat. § 131E-95 in various court orders. On 3 April 1996, The Charlotte Observer published a story by reporter John Hechinger about Dr. Virmani based on documents Hechinger obtained from the court file. The parties dispute whether these documents had been ordered sealed. On 7 May 1996, Hechinger attended a calendared hearing on Dr. Virmani's motion for summary judgment and on Presbyterian's motions to dismiss and for summary judgment. Early in the hearing, Presbyterian's attorneys moved to close the courtroom pursuant to G.S. § 131E-95 because they anticipated discussion of confidential medical peer review committee materials. The trial court ordered portions of the hearing concerning the medical peer review materials closed to the public. Prior to discussion of the peer review materials, the trial court asked Hechinger to identify himself. Hechinger answered, objected to closing of the hearing, and asked for a continuance in order that he could obtain counsel to argue against closure. The court noted his objection and denied the continuance. Hechinger complied with the closure by exiting the courtroom.

The next morning an attorney for Knight Publishing d/b/a The Charlotte Observer and Hechinger (jointly Knight) appeared before the trial court and presented written motions for intervention and to open the proceedings to the public and the news media. The trial court summarily denied the motions without hearing argument and without making findings of fact or conclusions of law. Presbyterian's attorneys were not present; however, Knight's attorney served a copy of the motions on the law partner of an attorney representing Presbyterian who was present for another matter.

In an order entered 10 May 1996, the trial court referenced Knight's motions and effectively, although not explicitly, denied the motions. Subsequent orders were entered sealing videotapes, tapes, and transcripts of those portions of the previously closed court proceedings in which medical peer review By order entered 24 July 1996, our Court allowed the writ of certiorari as to the orders that (1) sealed confidential information and medical peer review committee records and materials that were considered by the court and/or were in the court file, (2) closed the court proceedings dealing with confidential medical peer review committee records and materials, (3) sealed portions of transcripts and videotapes of the court proceedings, and (4) denied Knight's motions to intervene and to open court proceedings.

committee and physician credentialing matters were discussed, presented or argued. Knight filed a notice of appeal and petitions for various extraordinary writs including a petition for writ of certiorari with this Court.

PUBLIC RECORDS

We first address what right Knight has to attend courtroom proceedings and to review the sealed records in this civil action. Knight asserts access rights under N.C. Gen.Stat. §§ 132-1 and 7A-276.1, Article I, § 18 of our North Carolina Constitution, and the First Amendment of the United States Constitution.

Knight contends the peer review documents and testimony regarding the peer review process are public records under G.S. § 132-1. At common law, citizens have a "right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570, 579 (1978); see also News and Observer Publishing Company v. State ex rel. Starling; County of Wake v. State ex rel. Starling; Murphy v. State ex rel. Starling, 312 N.C. 276, 280, 322 S.E.2d 133, 136 (1984). However, this right is not absolute. Nixon, 435 U.S. at 598, 98 S.Ct. at 1312, 55 L.Ed.2d at 580; News and Observer, 312 N.C. at 280, 322 S.E.2d at 136. The United States Supreme Court has stated:

Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common law right of inspection has bowed before the power of a court to insure that its records are not "used to gratify private spite or promote public scandal" through the publication of "the painful and sometimes disgusting details of a divorce case" ... Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption ... or as sources of business information that might harm a litigant's competitive standing....

Nixon, 435 U.S. at 598, 98 S.Ct. at 1312, 55 L.Ed.2d at 580.

Access to public records in this State is governed by Chapter 132, which provides for liberal access. See G.S. § 132-1 et. seq.; News and Observer, 312 N.C. at 281, 322 S.E.2d at 137. Under Chapter 132 "public records" are those types of documents enumerated in G.S. § 132-1 "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." G.S. § 132-1 (1995). An "[a]gency of North Carolina government or its subdivisions" is defined broadly in the statute as "every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government." G.S. § 132-1. The breadth of this definition suggests it is inclusive of our state courts. In addition, in State v. West, 31 N.C.App. 431, 448, 229 S.E.2d 826, 835-36 (1976), aff'd, 293 N.C. 18, 235 S.E.2d 150 (1977), an action was brought by the State of North Carolina to recover property of the State, being bills of indictment filed in a North Carolina colonial district superior court in 1767 and 1768. Our Court held the bills of indictment were public records. West, 31 N.C.App. at 448, 229 S.E.2d at 835-36. "The trial court having found that the bills of indictment were docketed in the Salisbury District Superior Court, it follows without question that they became public records...." Id. Thus, the term "public records" appears to include "all documents, papers ... or other documentary material," as defined in G.S. § 132-1, "made or received pursuant to law or ordinance in connection However, here the trial court orders were based on G.S. § 131E-95. This statute shields hospitals and professional health services providers from third party attempts to acquire medical review committee records and materials in the context of a civil action. Knight acknowledges that G.S. § 131E-95 expressly provides these records and materials are not public records within the meaning of G.S. § 132-1(b). However, Knight asserts that, in spite of this statute, these records and materials became public records once they were introduced by defendant as evidence in the public forum of this civil action. G.S. § 131E-95 does not explicitly address the impact of a hospital's or professional health services provider's decision to present medical review committee materials as evidence in a civil action. In fact, the legislative decision reflected in G.S. § 131E-95 to protect professional health services providers and hospitals from discovery or introduction of this material into evidence is based on the implicit assumption that the material becomes public once it is introduced into a court proceeding.

with the transaction of public business" by any North Carolina court.

In a case addressing a similar issue, our Supreme Court held that records exempt from public records status pursuant to N.C. Gen.Stat. § 114-15 do not continue to be exempt once they become records of another state agency whose records are public under G.S. § 132-1. News and Observer Publishing Co. v. Poole, 330 N.C. 465, 474, 412 S.E.2d 7, 12-13 (1992). Of course, here the medical peer review committee materials were not actually made available to the public as occurred in Poole because Presbyterian presented materials to the court in conjunction with the orders closing the proceedings and sealing the record. However, even if the peer review materials became public records under Chapter 132 once they were introduced by Presbyterian as evidence in this action, this occurrence did not divest the trial...

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6 cases
  • Virmani v. Presbyterian Health Services
    • United States
    • North Carolina Supreme Court
    • June 25, 1999
    ...the trial court unseal all documents previously sealed pursuant to the orders hereby reversed." Virmani v. Presbyterian Health Servs. Corp., 127 N.C.App. 629, 648, 493 S.E.2d 310, 323 (1997). As we have concluded that the documents filed as exhibits attached to plaintiff's complaint entered......
  • DTH Pub. Corp. v. University of North Carolina at Chapel Hill, UNC-CH
    • United States
    • North Carolina Court of Appeals
    • February 17, 1998
    ...and sealed court records in which medical peer review materials were introduced or discussed. Virmani v. Presbyterian Health Services, Corp., 127 N.C.App. 629, 493 S.E.2d 310 (1997). We held that the open courts provision creates a strong presumption that civil court proceedings be kept ope......
  • Pinnix v. SSC Silver Stream Operating Co.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • August 5, 2015
    ...use the peer-review committee as a "privilege" clearinghouse for protecting otherwise discoverable information. Virmani v. Presbyterian Health Servs., 127 N.C. App. 629 (1997). The privilege does not extend to the gathering of raw data by a hospital's "risk-management team," but does protec......
  • Erney v. Welliver, No. 1:99cv74-T (W.D.N.C. 3/13/2000)
    • United States
    • U.S. District Court — Western District of North Carolina
    • March 13, 2000
    ...use the peer-review committee as a "privilege" clearinghouse for protecting otherwise discoverable information. Virmani v. Presbyterian Health Servs., 127 N.C. App. 629 (1997). The privilege does not extend to the gathering of raw data by a hospital's "risk-management team," but does protec......
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