Woods v. Moses Cone Health System

• Decision Date: 07 July 2009
• Docket Number: No. COA08-1556.,COA08-1556.
• Citation: 678 S.E.2d 787
• Parties: Bobbiejo Lee WOODS, Administratrix of the Estate of Robert Gordon Woods, Plaintiff, v. MOSES CONE HEALTH SYSTEM d/b/a Moses Cone Memorial Hospital and Guilford Neurosurgical Associates, P.A., Defendants.
• Court: North Carolina Court of Appeals

678 S.E.2d 787

Bobbiejo Lee WOODS, Administratrix of the Estate of Robert Gordon Woods, Plaintiff, v. MOSES CONE HEALTH SYSTEM d/b/a Moses Cone Memorial Hospital and Guilford Neurosurgical Associates, P.A., Defendants.

No. COA08-1556.

Court of Appeals of North Carolina.

July 7, 2009.

Appeal by Defendant Moses Cone Health System d/b/a Moses Cone Memorial Hospital and by Plaintiff from order entered 7 July 2008 by Judge Anderson Cromer in Superior Court, Guilford County. Heard in the Court of Appeals 20 May 2009.

Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr., Chapel Hill, for Plaintiff.

Wilson & Coffey, LLP, by G. Gray Wilson and Lorin J. Lapidus, Winston-Salem, for Defendant.

North Carolina Hospital Association, by Linwood L. Jones, Cary; and The North Carolina Association of Defense Attorneys, by Timothy P. Lehan and Deanna Davis Anderson, Raleigh, amicus curiae.

McGEE, Judge.

Thirty-one-year old Robert Gordon Woods (Woods) was scheduled for ambulatory surgery on 22 February 2005 at Moses Cone Memorial Hospital and was to be discharged that same day. However, due to complications with his surgery, Woods was admitted to the hospital immediately following his surgery. Woods began complaining of difficulty swallowing and weakness in his right hand and foot. Woods' condition deteriorated over the next two days and he was returned to surgery at approximately 7:00 a.m. on 24 February 2005. Woods' medical condition continued to deteriorate and after a final respiratory arrest on 4 March 2005, Woods died.

Bobbiejo Lee Woods (Plaintiff) is the administrator of Woods' estate. Plaintiff filed a medical malpractice action on 6 February 2007 against Moses Cone Health System d/b/a Moses Cone Memorial Hospital (Defendant) and Guilford Neurosurgical Associates, P.A. (GNA), alleging Defendant and GNA were negligent in administering medical care to Woods and that their negligence caused Woods' death. GNA is not a party to this appeal. Plaintiff served Defendant with interrogatories and a request for production of documents. Defendant's answer and response included objections to Plaintiff's discovery requests, stating that the information sought by Plaintiff was privileged.

Plaintiff filed a motion to compel on 23 May 2008. In response, Defendant filed a motion for a protective order on 16 June 2008. Defendant claimed the discovery materials sought by Plaintiff were protected by N.C. Gen.Stat. § 131E-95 as materials produced by a medical review committee. In support of its motion for a protective order, Defendant filed an affidavit on 20 June 2008 of Amy Parker (Parker), a clinical risk management specialist employed by Defendant. Parker's affidavit stated:

1. The hospital maintains a medical review committee pursuant to North Carolina law, such that its proceedings are confidential. This committee conducted a peer review investigation into the medical care provided to [Woods] with regard to his hospitalization in February-March 2005, which is the subject matter of this lawsuit. In June 2005, the committee directed a written request to Dr. [ ] Stern for information about [the Woods case], to which Dr. Stern replied by correspondence to the committee in November 2005, which information was considered and utilized by the committee in its investigation of [the Woods case], and treated as strictly confidential at all times. In addition to responding to the written request of the committee for information, Dr. Stern was also a member of the committee at the time.

2. The hospital also has a quality assurance committee pursuant to North Carolina law, such that its proceedings are also confidential. This committee performed a root cause analysis on March 30, 2005 with regard to [Wood's] hospitalization as set forth above. The report generated by this committee was based on its investigation of this matter and is treated as strictly confidential as well.

Plaintiff's motion to compel and Defendant's motion for a protective order were heard on 26 June 2008. By stipulation of Plaintiff and Defendant, the only issues the trial court considered at the hearing were whether or not Plaintiff could compel discovery of (1) the 1 November 2005 letter (the letter) from Dr. Joseph Stern (Dr. Stern), the GNA neurosurgeon responsible for the postoperative treatment of Woods, to Dr. Mark Yates (Dr. Yates), Chairperson of Defendant's Surgical Peer Review Committee (SPRC), and (2) the root cause analysis report as described in Parker's affidavit. The trial court entered an order on 7 July 2008, in which it granted in part and denied in part Plaintiff's motion to compel, and granted in part and denied in part Defendant's motion for a protective order. The trial court held that:

4. ... The root cause analysis reports are the final result of [ ] quality assurance investigations or inquiries into the delivery of health services at [ ] [Defendant] Hospital. The inquiry was facilitated by the Serious Event Task Force (SETF) Committee, which is comprised of both healthcare providers and non-health care providers and that this committee is a subcommittee of the Medical Performance Improvement Committee, which qualifies as a medical review committee under G.S. §§ 90-21.22 et seq. The [SETF] Committee was acting pursuant to peer review activity under the auspices of the Medical Performance Improvement Committee when ordering a root cause analysis inquiry. The root cause analysis report described by [ ] Parker in her testimony and in her affidavit is confidential, privileged and not subject to discovery as a peer review document generated by a medical review committee as that term is defined in G.S. §§ 90-21.22 et seq.

The trial court held that "the letter from Dr. Stern to Dr. Yates, [the chairperson of the SPRC], was a part of peer review activities at [Defendant] Hospital and would, nothing else appearing, be entitled to confidentiality pursuant to peer review statutes and authority as privileged material." However, the trial court further held:

6. Counsel for [GNA] has made the letter of November 1, 2005 from Dr. Stern to Dr. Yates available to one or more reviewing experts....

7. The November 2, 2005 letter from Dr. Stern to Glenn Waters, [Defendant's chief operating officer], which enclosed a copy of the November 1, 2005 letter, was not part of peer review activities and was not directed to a medical review committee or any committee entitled to claim privilege or confidentiality.

8. The disclosure of the letter of November 1, 2005 from Dr. Stern to Dr. Yates (a) to Mr. Waters, and (b) to reviewing experts by counsel for defendant [GNA] made the letter otherwise available and operated as a waiver by Dr. Stern of the confidentiality of the information contained in the letter. However, upon conducting its in camera review, some information contained in the November 1, 2005 letter refers to root cause analysis or opinions about peer review activity. The Court has redacted those parts of the letter from the November 1 letter....

The trial court sealed the original and redacted versions of the letter to be made part of the court file in the event of appellate review. Defendant filed notice of appeal on 22 July 2008. Plaintiff filed notice of appeal on 23 July 2008.

I.

The trial court's order in the present case is an interlocutory order. However, N.C. Gen.Stat. § 7A-27(d)(1) permits an appeal from an interlocutory order which affects a substantial right. N.C. Gen.Stat. § 7A-27(d)(1) (2007). Our Supreme Court has held that "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); see also Hayes v. Premier Living, Inc., 181 N.C.App. 747, 751, 641 S.E.2d 316, 318 (2007) (finding that the interlocutory discovery order compelling production of reports which might be privileged pursuant to N.C. Gen. Stat. §§ 90-21.22A and 131E-107 affected a substantial right and was therefore immediately appealable). Because the trial court's order in the present case compels the production of a letter which might be statutorily privileged, the interlocutory order affects a substantial right and is therefore properly before us.

II.

A. Defendant's appeal

Defendant assigns error to the trial court's conclusion in paragraph eight of the trial court's order that the letter from Dr. Stern to Dr. Yates was discoverable because Dr. Stern's dissemination of the letter to parties outside the medical review committee made the letter "otherwise available and operated as a waiver" of the confidentiality of the letter. Defendant argues that because the letter was produced by a medical review committee, the letter is absolutely privileged and cannot become "otherwise available."

In paragraph one of its order, the trial court concluded that the letter was "part of peer review activities at [Defendant] Hospital and would, nothing else appearing, be entitled to confidentiality pursuant to peer review statutes and authority as privileged material." However, the trial court did not specifically find whether the SPRC was a medical review committee, and if so, pursuant to which statute.

Plaintiff's suit against Defendant is a civil action against a hospital and N.C. Gen. Stat. § 131E-95, part of the Hospital Licensure Act, creates protection for medical review committees in civil actions against hospitals. Therefore, N.C. Gen.Stat. § 131E is the applicable statute for determining whether the SPRC was a medical review committee and if so, the extent of protection granted to it.

N.C. Gen.Stat. § 131E-76(5) defines "medical review committee" as:

(5) "Medical review committee" means any of the following committees formed for the purpose of evaluating the quality, cost of, or necessity...