Williams v. Allen, COA20-724

Docket NºNo. COA20-724
Citation278 N.C.App. 790, 863 S.E.2d 632
Case DateAugust 03, 2021
CourtCourt of Appeal of North Carolina (US)

278 N.C.App. 790
863 S.E.2d 632

Hania H. WILLIAMS as Executor and Administrator of the Estate of Patrick Williams, Plaintiff,
v.
Marchelle Isyk ALLEN, P.A., Niles Anthony Rains, M.D., Bronwyn Louis Young II, M.D., Emergency Medicine Physicians of Mecklenburg County, PLLC d/b/a US Acute Care Solutions, LLC, C. Peter Chang, M.D., Charlotte Radiology, P.A., The Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System or Atrium Health, Defendants.

No. COA20-724

Court of Appeals of North Carolina.

Filed August 3, 2021


Knott & Boyle, PLLC, by W. Ellis Boyle, for plaintiff-appellee.

Dickie, McCamey & Chilcote, P.C., Charlotte, by John T. Holden, for defendants-appellants Marchelle Allen and Emergency Medicine Physicians of Mecklenburg County, PLLC.

TYSON, Judge.

863 S.E.2d 634

¶ 1 Marchelle Isyk Allen, P.A. and Emergency Medicine Physicians of Mecklenburg County, PLLC ("EMP") (collectively "Defendants") appeal from an order filed 24 March 2020 compelling production of a document claimed as privileged by Defendants. We remand for additional findings of fact and conclusions of law.

I. Background

¶ 2 Patrick Williams ("Williams") suffered back, stomach, and hip pains, which worsened throughout the morning and afternoon of 6 May 2016. Williams’ wife, Hania H. Williams, ("Plaintiff") took Williams to the Piedmont Urgent Care-Baxter in Fort Mill, South Carolina.

¶ 3 Williams could not get out of the car at Piedmont Urgent Care-Baxter. After speaking with Plaintiff, staff at Piedmont Urgent Care-Baxter called 911 for assistance. Williams’ condition was not evaluated by a healthcare provider at Piedmont Urgent Care-Baxter. Emergency Medical Services responded to Piedmont Urgent Care-Baxter, moved Williams into an ambulance, and transported him to the emergency department ("ED") at Carolinas Medical Center Pineville Hospital ("CMC-Pineville"). Williams arrived in the ED at 3:52 p.m.

¶ 4 Dr. Bronwyn Louis Young, II ordered 7.5 mg of oral hydrocodone and 600 mg of ibuprofen for Williams. The record does not show whether these medicines were issued pursuant to "standing orders" by Dr. Young, or if he had evaluated Williams prior to these orders being administered. Around 4:50 p.m., Physician Assistant Marchelle Allen ("Allen") met with and evaluated Williams. Williams reported he was experiencing increasing lower back pain that radiated down his left leg. Allen ordered 4 mg of morphine, 10 mg of Decadron, 10 mg of Flexeril, 4 mg of Zofran, and an x-ray to be administered to Williams’ spine.

¶ 5 Dr. C. Peter Chang read the x-ray and reported "no acute osseous abnormality" and "unusual linear calcifications seen to the right and left of the lumbar spine along the retroperitoneum likely vascular in nature." Dr. Chang noted the x-rays were "negative for acute pathology, ... negative for acute bony abnormality ... [and] show vascular calcifications."

¶ 6 Allen did not order further diagnostic tests for Williams. Williams was diagnosed with "left lumbar radiculopathy." Allen ordered prescriptions for Flexeril and hydrocodone. Williams was discharged from CMC-Pineville with instructions to schedule an office visit with OrthoCarolina "within 2-4 days." Dr. Niles Anthony Rains signed Williams’ record of the treatment provided by Allen on 7 May 2016 at 6:36 a.m.

¶ 7 Once home, Williams took the prescribed hydrocodone every six hours, but his pain persisted. Williams also developed abdominal pains. Williams returned to the CMC-Pineville ED on 7 May 2016 at 9:56 p.m. Williams presented with low blood pressure and reported severe abdominal pain.

¶ 8 Dr. Rains ordered a CT angiogram of Williams’ chest, abdomen, and pelvis with an IV contrast. Dr. Charlie McLaughlin read the images and diagnosed Williams with a ruptured abdominal aortic aneurism measuring 12 x 9.7 centimeters. Dr. Rains contacted the ED at Carolinas Medical Center Main ("CMC-Main") about transferring Williams for immediate surgical repair of the ruptured aneurism. Williams was transferred to CMC-Main by helicopter. Surgery to repair the ruptured aneurism was unsuccessful in saving Williams’ life. Williams was pronounced dead at 3:24 a.m. on 8 May 2016.

¶ 9 Dr. Rains spoke with Allen on 9 May 2016 and informed her of Williams’ death. Dr. Rains also relayed to Allen Plaintiff's 7 May 2016 statement to emergency department staff if anything should happen to Williams, she would be filing a claim against the personnel who treated him during his 6 May 2016 visit. Dr. Rains instructed Allen to memorialize her interactions with and treatment of Williams on an electronic form provided by her EMP group employer.

863 S.E.2d 635

¶ 10 Williams’ estate brought this action for wrongful death on 2 May 2018, and Plaintiff asserted claim for loss of consortium. Plaintiff requested production of documents relating to investigation by Defendants and any information related to Defendants’ interactions with and their care provided to Williams.

¶ 11 Allen submitted a privilege log identifying a four-page "diary" entry she had written on 10 May 2016, concerning the event claiming: "Work Product, and Prepared by the Defendants in anticipation of litigation, peer review." Plaintiff filed a motion to compel on 17 July 2019 pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(a) (2019). Plaintiff sought the production of a four-page document identified as typed notes Allen had created 10 May 2016, as identified in the privilege log produced on 11 July 2019. After hearing from the parties and examining the document at issue, the trial court granted Plaintiff's motion to compel and the four-page document was delivered to Plaintiff.

¶ 12 Allen was deposed on 30 October 2019. During Allen's deposition, her "diary" entry was presented to her, and the existence of an additional document was discovered. This additional two-page document was not included in Defendants’ privilege log, and it was withheld from disclosure due to Defendants’ claim of Medical Review Committee and other privileges under N.C. Gen. Stat. § 90-21.22A (2019). Allen created this document utilizing EMP's company website and submitted it to risk management.

¶ 13 Plaintiff filed a motion to enforce her previous motion to compel, pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(b) (2019). In her motion, Plaintiff argued Allen's diary entry that was eventually produced was not in fact what they were seeking in their first motion to compel hearing. Plaintiff alleged she was seeking this second document submitted to risk management and the arguments made by Defendants’ counsel at the motion to compel hearing about privilege and peer review were asserted to this second document. Plaintiff argued the asserted privilege could not relate to Allen's diary entry. After hearing from the parties, reviewing the affidavits, and conducting an in-camera review of the disputed second document, the trial court granted the motion, but ordered the subject document to be kept under seal, pending appeal. The trial court denied Plaintiff's sanctions motion and awarded no fees or sanctions. Defendants appealed.

II. Jurisdiction

¶ 14 "An 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). Our Court has held: "As a general proposition, only final judgments, as opposed to interlocutory orders, may be appealed to the appellate courts." Hamilton v. Mortg. Info. Servs., Inc. , 212 N.C. App. 73, 77, 711 S.E.2d 185, 188 (2011) (citations omitted).

¶ 15 "Appeals from interlocutory orders are only available in exceptional cases." Id. (citation and internal quotation marks omitted). Our rules "against interlocutory appeals seek[ ] to prevent fragmentary, premature and unnecessary appeals by allowing the trial court to bring a case to final judgment before its presentation to the appellate courts." Turner v. Norfolk S. Corp. , 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (citation omitted).

¶ 16 "No hard and fast rules exist for determining which appeals affect a substantial right. Rather, such decisions usually require consideration of the facts of the particular case." Estrada v. Jaques , 70 N.C. App. 627, 640, 321 S.E.2d 240, 249 (1984) (citations omitted).

¶ 17 An order compelling or enforcing discovery or for sanctions may be immediately appealable if it affects a substantial right under N.C. Gen. Stat. §§ 1-277 or 7A-27(b)(3) a (2019). A substantial right is invoked when a party asserts a statutory privilege, which directly relates to the matter to be disclosed, and the assertion of the privilege is not "frivolous or insubstantial." K2 Asia Ventures v. Trota , 215 N.C. App. 443, 447, 717 S.E.2d 1, 4 (2011) (citation omitted). Orders compelling discovery of materials asserting

863 S.E.2d 636

protection by the medical review privilege affects a substantial right and are immediately reviewable on appeal. Hammond v. Saini , 229 N.C. App. 359, 362, 748 S.E.2d 585, 588 (2013), aff'd as modified , 367 N.C. 607, 766 S.E.2d 590 (2014). This issue is properly before this Court.

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1 practice notes
  • Sprinke v. Johnson, COA20-32
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 3, 2021
    ...received notice that his case was calendared for trial but failed to appear because he was "neglectful and inattentive to his case." 863 S.E.2d 632 167 N.C. App. 412, 418, 606 S.E.2d 164, 168 (2004). In Brown , this Court concluded that:neither the scheduling order nor the court calendar wa......
1 cases
  • Sprinke v. Johnson, COA20-32
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 3, 2021
    ...received notice that his case was calendared for trial but failed to appear because he was "neglectful and inattentive to his case." 863 S.E.2d 632 167 N.C. App. 412, 418, 606 S.E.2d 164, 168 (2004). In Brown , this Court concluded that:neither the scheduling order nor the court calendar wa......

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