Young v. Kimberly-Clark Corp.

• Decision Date: 21 February 2012
• Docket Number: No. COA11–1020.,COA11–1020.
• Citation: 724 S.E.2d 552
• Parties: Charissa YOUNG, Plaintiff, v. KIMBERLY–CLARK CORPORATION, Fred Hart, individually, and Brett Samuels, individually, Defendants.
• Court: North Carolina Court of Appeals

724 S.E.2d 552

Charissa YOUNG, Plaintiff,

v.KIMBERLY–CLARK CORPORATION, Fred Hart, individually, and Brett Samuels, individually, Defendants.

No. COA11–1020.

Court of Appeals of North Carolina.

Feb. 21, 2012.

Appeal by plaintiff from order entered 28 February 2011 by Judge Gary M. Gavenus in Superior Court, Haywood County. Heard in the Court of Appeals 9 February 2012.

Law Offices of Glen C. Shults, Asheville, by Glen C. Shults, for plaintiff-appellant.

Goldsmith, Goldsmith & Dews, P.A., Marion, by C. Frank Goldsmith, Jr., for defendants-appellees.

STROUD, Judge.

Charissa Young (“plaintiff”) appeals from an order compelling discovery of medical records and information, identification of persons contacted by plaintiff or her counsel as to her claim, and plaintiff's federal and state income tax returns. For the reasons stated below, we affirm.

I. Background

Plaintiff was employed by defendant Kimberly–Clark Corporation from “in or about 1991” until June 2008, when plaintiff alleges that she was wrongfully terminated by defendant Kimberly–Clark, as a result of her filing a workers' compensation claim for a compensable injury she suffered on 5 December 2007. Plaintiff filed a complaint against the Kimberly–Clark Corporation; Fred Hart, individually; and Brett Samuels, individually (collectively referred to herein as “defendants”) on 30 June 2009, alleging claims against defendant Kimberly–Clark for violation of the Retaliatory Employment Discrimination Act (N.C. Gen.Stat. § 95–240 et seq.) and wrongful discharge in violation of public policy and claims against all three defendants for gross negligence, negligent infliction of emotional distress, and tortious interference with a contract. Plaintiff sought damages including both past and future “lost wages, bonus payments, employment benefits, and interest” as well as “compensatory damages for emotional distress and/or pain and suffering[.]” On 3 January 2011, defendant Kimberly–Clark filed a motion to compel discovery from plaintiff “regarding Plaintiff's health care providers and her physical and mental health;” identification of “all individuals from whom Plaintiff has obtained a statement or affidavit and ... all Kimberly–Clark employees who have been contacted in connection with Plaintiff's claim;” and “copies of Plaintiff's tax returns from January 1, 2007 to the present.” On 28 February 2011, the trial court entered an order allowing in part and denying in part defendant Kimberly–Clark's motion to compel discovery from plaintiff. Plaintiff timely appealed from this order.

II. Interlocutory order

The order compelling discovery is an interlocutory order, and interlocutory orders are normally not immediately appealable. Mims v. Wright, 157 N.C.App. 339, 341, 578 S.E.2d 606, 608 (2003).

Orders that are interlocutory are subject to immediate appeal when they affect a substantial right of a party. [ Mims v. Wright, 157 N.C.App. 339, 341, 578 S.E.2d 606, 608 (2003) ] “ ‘[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....’ ” Id. (quoting Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999)).

Midkiff v. Compton, 204 N.C.App. 21, 24, 693 S.E.2d 172, 174, cert. denied, 364 N.C. 326, 700 S.E.2d 922 (2010). Because plaintiff claims that the discovery order requires her to produce information and documents which are protected by various privileges, the order affects a substantial right and is immediately appealable. See Sharpe v. Worland, 351 N.C. 159, 165–66, 522 S.E.2d 577, 580–81 (1999).

III. Standard of Review

When reviewing a trial court's ruling on a discovery issue, our Court reviews the order of the trial court for an abuse of discretion. Midgett v. Crystal Dawn Corp., 58 N.C.App. 734, 737, 294 S.E.2d 386, 388 (1982) (noting that ordinarily, orders relating to discovery are addressed to the discretion of the trial court and are to be reviewed for abuse of discretion). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).Midkiff, 204 N.C.App. at 24, 693 S.E.2d at 175. On appeal plaintiff argues that the trial court erred in ordering her to produce (1) her medical records; (2) the names of persons contacted by her counsel; and (3) her tax returns.

IV. Medical records

The trial court's order compelling discovery addressed defendant's request for production of plaintiff's medical records as follows:

1. Interrogatories 4 and 5, Document Production Requests 15 and 16. These requests seek information and records concerning plaintiff's medical treatment (including treatment for mental or emotional conditions) within the ten years prior to service of the requests. Plaintiff refused to provide any such information except for the period after December 5, 2007, when she injured her knee at work. The Court finds defendant's requests to be proper and to be within the scope of discovery as set forth in Rule 26, N.C.R. Civ. P., as plaintiff has placed her mental and emotional health in issue by asserting a claim for infliction of emotional distress and by seeking emotional distress damages in other claims in this action, and her medical records may reasonably be sources of information on that issue. In addition, plaintiff's medical condition is relevant to her ability to earn income from other employment. However, the Court, in its discretion, finds that five years from service of the requests, rather than the ten years sought by defendant, is a reasonable period for the scope of defendant's request, absent a showing that a longer period is necessary for the discovery of such information. Defendant's motion to compel discovery as to these requests is, therefore, ALLOWED, and plaintiff is ORDERED to answer fully Interrogatories 4 and 5, and to produce the documents requested in Document Production Requests 15 and 16 (or to execute a release permitting defendant to obtain them), except that such answers and production shall cover the period beginning five years prior to service of the requests. Plaintiff shall answer the interrogatories and produce the requested documents or executed release as soon as possible, so as not to delay further this litigation, and in any event within ten days from the entry of this order.

Plaintiff first argues that the “superior court erred in ordering the production of plaintiff's medical records that involve purely physical conditions, which are unrelated to her mental or emotional condition.” Plaintiff contends that the trial court failed to draw a distinction between records regarding “purely physical conditions that caused no emotional distress” and physical conditions which did cause emotional distress. Plaintiff notes that “[t]he medical records would presumably show whether Young experienced any emotional distress for any of the physical or emotional conditions for which she sought treatment, and only those records should be produced.” (emphasis added). She argues at length about the failure of the trial court to make any “finding of a causal or historical relationship between Plaintiff's emotional distress claims and the records ordered to be produced.” Defendants counter that the trial court did not abuse its discretion in compelling plaintiff to produce her medical records as she waived the patient-physician privilege when she brought an action which placed her medical condition at issue.

Even if we assume arguendo that the trial court could make any sort of clear distinction between “purely physical conditions” and physical conditions which cause emotional distress based merely upon perusal of medical records-a proposition we sincerely doubt—we first note that in order for the trial court to make this type of determination as to the information which may be revealed in plaintiff's medical records, plaintiff would have had to produce the records to the trial court for in camera review; this she did not do. Plaintiff's arguments in this regard are speculative and hypothetical. In addition, our Court has held specifically that the statutory privileges accorded communications between a patient and various medical providers is impliedly waived if the patient brings a claim for emotional distress, as this type of claim places her medical condition at issue.

North Carolina has created by statute a privilege for communications between a physician and patient. See N.C. Gen.Stat. § 8–53 (2005) (for doctors); see also N.C. Gen.Stat. § 8–53.3 (2005) (for psychologists); N.C. Gen.Stat. § 8–53.7 (2005) (for social workers); N.C. Gen.Stat. § 8–53.8 (2005) (for counselors). “It is the purpose of such statutes to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination.” Sims v. Charlotte Liberty Mut. Insurance Co., 257 N.C. 32, 36, 125 S.E.2d 326, 329 (1962). The privilege “extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe.” Smith v. John L. Roper Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718 (1908).

This patient-physician privilege is not absolute, however, and may be waived, either by express waiver or by waiver implied from the patient's conduct. Mims v. Wright, 157 N.C.App. 339, 342, 578 S.E.2d 606, 609 (2003). We have recognized that a patient impliedly waives this privilege when she opens the door to her medical history by bringing an action,...