Wieters v. Bon-Secours-St. Francis

Decision Date23 April 2008
Docket NumberNo. 4374.,4374.
CourtSouth Carolina Court of Appeals
PartiesThomas R. WIETERS, M.D., Respondent, v. BON-SECOURS-ST. FRANCIS XAVIER HOSPITAL, INC., Allen P. Carroll, William B. Ellison, Jr., Jeffrey M. Deal, M.D., Sharron C. Kelly, and Esther Lerman Freeman, Psy. D. of whom: Bon-Secours-St. Francis Xavier Hospital, Inc., Allen P. Carroll, William B. Ellison, Jr., Jeffrey M. Deal, M.D., and Sharron C. Kelly are Appellants.

James J. Hinchey, Jr., of Charleston, for Appellants.

Gregg Meyers, of Charleston, for Respondent.

Ralph W. Barbier and Jeanne M. Born, both of Columbia, for Amicus Curiae South Carolina Hospital Association.


In this action for defamation and civil conspiracy brought by Dr. Thomas R. Wieters (Wieters) against Bon-Secours-St. Francis Xavier Hospital, Inc. (Hospital), Allen P. Carroll, Dr. William B. Ellison, Jr., Dr. Jeffrey M. Deal (Deal), and Sharron C. Kelly, Hospital and these individuals (collectively Hospital Personnel) appeal an order compelling discovery. Dr. Esther Lerman Freeman (Freeman) is a defendant but not a party to this appeal. We reverse.


Wieters is a physician licensed to practice in South Carolina. His medical staff privileges were summarily suspended by Hospital. Pursuant to the Hospital's Medical Staff Bylaws, he was granted a hearing by a committee of the medical staff and an appellate hearing before a committee of the Hospital's Board. After each hearing, the respective committee upheld the suspension.

As required by federal law, Hospital reported Wieters' suspension to the National Practitioner Data Bank. Wieters sued Hospital and Hospital Personnel for defamation, alleging the report they transmitted to the National Practioner Data Bank contained false information about him. He maintains Hospital, Hospital Personnel, and Freeman engaged in a conspiracy to injure him.

During discovery, Wieters, through his attorney, deposed Deal and a non-party witness, Dr. Donald Pocock (Pocock). Wieters inquired about the circumstances that led to the summary suspension of other physicians at Hospital, its affiliate Roper Hospital, and other hospitals where the witnesses had worked. Both Deal and Pocock testified how many physicians they recall being suspended during their service on peer review committees, but both deponents were instructed by their counsel or Hospital's counsel to not answer questions concerning what led to the other physicians' suspensions, citing the confidentiality provisions of South Carolina's Peer Review Statute, section 40-71-20 of the South Carolina Code.

Hospital and Hospital Personnel sought a protective order pursuant to Rule 26, SCRCP. Wieters moved to compel the witnesses to answer the deposition queries. The circuit court issued an order compelling Deal and Pocock to answer general questions regarding other summary suspensions without identifying the physicians involved. The relevant section of the order reads:

Deposition questions not answered. This case is about, in part, the information which related to a summary suspension of the plaintiff doctor. In deposition, witnesses Dr. Deal and Dr. Pocock were asked to provide a general description of the circumstances which prompted other applications of summary suspension. All such information was refused, and the witnesses instructed not to answer, citing privilege. The Hospital defendants filed a motion for a protective order claiming the information was protected peer review citing S.C.Code § 40-71-20 and McGee v. Bruce Hospital, 321 S.C. 340, 468 S.E.2d 633 (1996).

The information relates to the claim of the plaintiff and should be provided. The plaintiff has not requested identifying information, only the nature of the circumstances that gave rise to other applications of summary suspension, and no privilege prohibits that information being provided. The plaintiff may pose the questions the witnesses were instructed not to answer, and to make any related follow up questions.

Hospital and Hospital Personnel appeal the order compelling Deal and Pocock to answer the deposition questions.1


1. Is the circuit court's order compelling discovery appealable?

2. Do the deposition questions unanswered by Deal and Pocock pertain to confidential committee proceedings protected by the Peer Review Statute, South Carolina Code section 40-71-20?


A circuit court judge's rulings on discovery matters will not be disturbed on appeal absent a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 502, 381 S.E.2d 734 (1989); Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 128, 542 S.E.2d 736, 742 (Ct. App.2001). The burden is upon the party appealing the order to demonstrate the court abused its discretion. Karppi v. Greenville Terrazzo Co., Inc., 327 S.C. 538, 542, 489 S.E.2d 679, 681 (Ct.App.1997).

An abuse of discretion may be found by this Court where the appellant shows that the conclusion reached by the circuit court was without reasonable factual support, resulted in prejudice to the right of appellant, and, therefore, amounted to an error of law. Kershaw County Bd. of Educ. v. U.S. Gypsum Co., 302 S.C. 390, 395, 396 S.E.2d 369, 372 (1990); Darden v. Witham, 263 S.C. 183, 209 S.E.2d 42 (1974), overruled on other grounds, Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991).

I. Appealability of discovery orders

As a general rule, only final judgments are appealable. Culbertson v. Clemens, 322 S.C. 20, 23, 471 S.E.2d 163, 164 (1996); Bolding v. Bolding, 283 S.C. 501, 323 S.E.2d 535 (Ct.App.1984). "Any judgment or decree, leaving some further act to be done by the court before the rights of the parties are determined, is interlocutory and not final." Ex parte Wilson, 367 S.C. 7, 625 S.E.2d 205 (2005).

An order directing a non-party to submit to discovery is not immediately appealable. Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974). Instead, a non-party must be held in contempt before an appeal may be taken challenging the validity of the discovery order. Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986).

An order compelling a party to submit to discovery is interlocutory and not directly appealable. Hamm v. South Carolina Public Service Com'n, 312 S.C. 238, 241, 439 S.E.2d 852, 853 (1994); Waddell v. Kahdy, 309 S.C. 1, 419 S.E.2d 783 (1992); Wallace v. Interamerican Trust Co., 246 S.C. 563, 144 S.E.2d 813 (1965). "This discovery order is not a final order because it leaves some further act to be done by the court before the rights of the parties in an enforcement proceeding are determined." Ex parte Wilson, 367 S.C. at 13, 625 S.E.2d at 208.

Absent some specialized statute, the immediate appealability of an interlocutory or intermediate order depends on whether the order falls within South Carolina Code section 14-3-330. Baldwin Const. Co., Inc. v. Graham, 357 S.C. 227, 593 S.E.2d 146 (2004). Section 14-3-330 states:

The Supreme Court shall have appellate jurisdiction for correction of errors of law in law cases, and shall review upon appeal:

(1) Any intermediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such actions; provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from;

(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action;

(3) A final order affecting a substantial right made in any special proceeding or upon a summary application in any action after judgment; and

(4) An interlocutory order or decree in a court of common pleas granting, continuing, modifying, or refusing an injunction or granting, continuing, modifying, or refusing the appointment of a receiver.

S.C.Code Ann. § 14-3-330 (1976 & Supp. 2007).

An order granting a motion to disqualify a party's attorney in a civil case affects a substantial right and may be immediately appealed. Hagood v. Sommerville, 362 S.C. 191, 607 S.E.2d 707 (2005). Such an order must be immediately appealed or any later objection in a subsequent appeal will be waived. Id. The order to unseal the record of a divorce proceeding is immediately appealable. Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 8, 630 S.E.2d 464, 468 (2006) ("[W]e agree with courts which have been inclined to find such an order immediately appealable because, after a court file is unsealed and the information released, no appellate remedy is likely to repair any damage done by an improper disclosure."). The denial of appellant's motion to proceed anonymously meets the benchmark for appellate review. Doe v. Howe, 362 S.C. 212, 216, 607 S.E.2d 354, 356 (Ct.App.2004) ("The final judgment rule serves the laudatory goal of preventing piecemeal review of matters that are merely steps toward a final judgment. In light of the policy underpinnings of the final judgment rule, exceptions should be recognized cautiously.").

Statutes and rules of court should be construed liberally in favor of the right of appeal. Stroup v. Duke Power Co., 216 S.C. 79, 84, 56 S.E.2d 745, 747 (1949); Haughton v. Order of United Commercial Travelers of Am., 108 S.C. 73, 74-75, 93 S.E. 393, 394 (1917); O'Rourke v. Atl. Paint Co., 91 S.C. 399, 403, 74 S.E. 930, 931 (1912).

The South Carolina Supreme Court considered the same issue before us in the instant case in McGee v. Bruce Hospital...

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