Appeal and Error--appealability--interlocutory order--denial of ex parte contact with
physician--no substantial right
An appeal was dismissed as interlocutory where plaintiffs filed an action alleging negligent
neurosurgery; dismissed their claims against the doctor and practice, leaving the claim against
defendant hospital; defendant filed a motion to permit contact with the treating physician; that
motion was denied; and defendant appealed. Interlocutory discovery orders are not ordinarily
appealable prior to final judgment, but review has been allowed if a substantial right is implicated.
Here, while defendant is prohibited from ex parte contact, the order in no way precludes the
multi-varied discovery methods of Rule 26 and defendant's assertion that the order precluded
preparing its defense was not persuasive.
Henson & Fuerst, P.A., by Thomas W. Henson, for plaintiffs-
appellees.
Harris, Shields, Creech & Ward, P.A., by Thomas E. Harris, R.
Brittain Blackerby, and Mary V. Ringwalt, for defendant-
appellant Cape Fear Memorial Hospital.
JOHN, Judge.
Defendant Cape Fear Memorial Hospital, Inc. (Cape Fear)
appeals the trial court's order denying its “Motion to Waive
Privilege and Permit Contact with Treating Physician.” Cape Fear's
appeal is interlocutory and must be dismissed.
Pertinent facts and procedural history include the following:
On 15 June 1995, plaintiffs Murray and Shirley B. Norris (Mr. and
Mrs. Norris), husband and wife, filed suit against defendantsRaymond Sattler, M.D. (Dr. Sattler), Wilmington Neurological
Associates, P.A. (WNA), and Cape Fear. Plaintiffs' complaintalleged that Dr. Sattler, an employee of WNA, negligently performed
neurosurgery on Mrs. Norris proximately causing her to become blind
in her right eye and to suffer, inter alia, “diminished mental
status . . . [and] emotional immobility.”
Plaintiffs further alleged Dr. Sattler was an agent of Cape
Fear which, at the time of the operation upon Mrs. Norris, knew
that Dr. Sattler suffered from “physical and/or mental illness” such
that he exhibited “erratic, bizarre, dangerous, and life
threatening behavior.” Notwithstanding, the complaint continued,
Cape Fear “allowed him to continue practicing at their facility” and
to perform the surgery at issue. Plaintiffs sought compensatory
and punitive damages.
Cape Fear filed its answer 3 August 1995 and Dr. Sattler and
WNA answered 14 August 1995, each of the three generally denying
plaintiffs' claims. Dr. Sattler's deposition was taken 26
September 1996. On 30 July 1997, plaintiffs voluntarily dismissed
with prejudice their claims against Dr. Sattler and WNA.
Cape Fear thereafter filed a (22 December 1998) “Motion to
Waive Privilege and Permit Contact with Treating Physician” seeking
an order “confirming” that the physician-patient privilege betweenDr. Sattler and Mrs. Norris had been waived, and
permitting [Cape Fear] to have such
discussions with Dr. Sattler as [Cape Fear]
deems necessary and appropriate to prepare for
the trial of the case.
Cape Fear also filed a motion requesting that the court make
findings of fact in support of its order. See N.C.G.S. § 1A-1,
Rule 52(a)(2) (1999). On 16 March 1999, the trial court entered an
order (the Order) denying Cape Fear's motion, citing Crist v.
Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990) as “controlling”
authority.
Cape Fear subsequently appealed in a timely manner. On 1 July
1999, plaintiffs moved to dismiss Cape Fear's appeal as
interlocutory.
In Crist, our Supreme Court held that notwithstanding waiver
of the physician-patient privilege by a patient, see N.C.G.S. § 8-
53 (1999),
defense counsel may not interview plaintiff's
nonparty treating physicians privately without
plaintiff's express consent. Defendant
instead must utilize the statutorily
recognized methods of discovery enumerated in
N.C.G.S. § 1A-1, Rule 26 [(1999) (Rule 26)].
Crist, 326 N.C. at 336, 389 S.E.2d at 47. Cape Fear maintains the
case sub judice is distinguishable from Crist; however, it is
unnecessary to address Cape Fear's argument in that we conclude
plaintiffs' motion to dismiss the instant appeal should be allowed.
An order of the trial court
is interlocutory if it is made during the
pendency of an action and does not dispose of
the case but requires further action by the
trial court in order to finally determine the
entire controversy. . . . There is generally
no right to appeal an interlocutory order.
Howerton v. Grace Hospital, Inc., 124 N.C. App. 199, 201, 476S.E.2d 440, 442 (1996) (citations omitted). The rule prohibiting
interlocutory appeals
prevent[s] fragmentary, premature and
unnecessary appeals by permitting the trial
court to bring the case to final judgment
before it is presented to the appellate
courts.
Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218,
disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985).
Without doubt, the Order challenged herein is interlocutory as
it does not fully dispose of the case. See Howerton, 124 N.C. App.
at 201, 476 S.E.2d at 442. Interlocutory orders may be appealed
only in two instances:
first, where there has been a final
determination of at least one claim, and the
trial court certifies there is no just reason
to delay the appeal, [N.C.G.S. § 1A-1, Rule
54(b) (1990) (Rule 54)]; and second, if
delaying the appeal would prejudice a
“substantial right.”
Liggett Group v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674,
677 (1993) (citations omitted).
There is no issue of the applicability of the first avenue of
appeal herein. No final determination has been made as to any
claims and the trial court did not certify the present appeal
pursuant to Rule 54. See id.
Under the substantial right exception, see N.C.G.S. §§ 1-
277(a), 7A-27(d)(1) (1999), an otherwise interlocutory order may be
appealed upon a showing by the appellant that: (1) the order
affects a right that is indeed “substantial;” and, (2) “enforcementof that right, absent immediate appeal, [will] be 'lost,
prejudiced, or be less than adequately protected by exception to
entry of the interlocutory order.'” First Atl. Mgmt. Corp. v.
Dunlea Realty Co., 131 N.C. App. 242, 250, 507 S.E.2d 56, 62 (1998)
(quoting J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C.
App. 1, 6, 362 S.E.2d 812, 815 (1987)).
Our courts have acknowledged that the substantial right test
is more easily stated than applied [and] [i]t
is usually necessary to resolve the question
in each case by considering the particular
facts of the case and the procedural context
in which the order from which appeal is sought
was entered.
Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343
(1978). In any event, “it is the appellant's burden to present
appropriate grounds for this Court's acceptance of an interlocutory
appeal.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App.
377, 379, 444 S.E.2d 252, 253 (1994).
The Order is best categorized as a discovery order in that it
prohibits Cape Fear from contact with Dr. Sattler other than
through “the statutorily recognized methods of discovery enumerated
in” Rule 26. Crist, 326 N.C. at 336, 389 S.E.2d at 47. It is a
well-established “general rule that interlocutory discovery orders
are not ordinarily appealable prior to entry of a final judgment,”
Sharpe v. Worland, 351 N.C. 159, 164, 522 S.E.2d 577, 580 (1999),
as they do not affect a substantial right, id. at 163, 522 S.E.2d
at 579. We consider discovery . . . issues . . . to be
fragmentary and partial issues which, in the
interest of judicial economy, should not be
considered by this Court.
Hale v. Leisure, 100 N.C. App. 163, 167-68, 394 S.E.2d 665, 668
(1990).
However, our courts have allowed review of such orders if a
substantial right is indeed implicated. See Sharpe, 351 N.C. at
164, 522 S.E.2d at 580 (order compelling discovery of documents
protected by statutory privilege affected substantial right); Shaw
v. Williamson, 75 N.C. App. 604, 606, 331 S.E.2d 203, 204 (order
compelling discovery of documents protected by constitutional right
against self-incrimination affected substantial right), disc.
review denied, 314 N.C. 669, 335 S.E.2d 496 (1985); Walker v.
Liberty Mut. Ins. Co., 84 N.C. App. 552, 554, 353 S.E.2d 425, 426
(1987) (order compelling discovery appealable if order enforced by
sanctions); Tennessee-Carolina Trans. Co. v. Strict Corp., 291 N.C.
618, 625, 629, 231 S.E.2d 597, 601, 603 (1977) (order denying
deposition of witness “effectively preclude[d]” defendant from
introducing “highly material” evidence and therefore affected
substantial right).
According to Cape Fear, the “substantial right” involved herein
“is the right to prepare adequate defenses for trial with the
critical witness in the case.” Cape Fear insists the Order has
placed it
in the untenable position of having to defend
the conduct of a physician without having theability to meet with and discuss the case with
that individual prior to trial.
On the contrary, while it is true that Cape Fear is prohibited
from ex parte contact with Dr. Sattler, the Order in no way
precludes Cape Fear from “meet[ing] with and discussing the case
with” Dr. Sattler in the context of the multi-varied discovery
methods detailed in Rule 26. See Rule 26(a) (parties may obtain
discovery by “depositions upon oral examination or written
questions; written interrogatories; production of documents or
things or permission to enter upon land or other property, for
inspection and other purposes; physical and mental examinations;
and requests for admission”). Further, the Order in no way
precludes Cape Fear from discovering or introducing “highly
material” evidence, as in Tennessee-Carolina Trans. Co., 291 N.C.
at 629, 231 S.E.2d at 603.
In weighing the competing interests in light of analogous
arguments in Crist, our Supreme Court observed that
“ex parte interviews may be less expensive and
time-consuming than formal discovery and may
provide a party some means of equalizing
tactical advantage . . . .”
. . . .
[However,] considerations of patient privacy,
the confidential relationship between doctor
and patient, the adequacy of formal discovery
devices, and the untenable position in which
ex parte contacts place the nonparty treating
physician supersede defendant's interest in a
less expensive and more convenient method of
discovery.
Crist, 326 N.C. at 335-36, 389 S.E.2d at 46-47 (citing Nelson v.Lewis, 534 A.2d 720, 723 (N.H. 1987)).
Under the circumstances sub judice, therefore, we hold Cape
Fear has not met its “burden to present appropriate grounds,”
Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253, for hearing the
instant interlocutory appeal. Cape Fear has been unpersuasive in
its assertion that the Order precluded it from preparing its
defense with the critical witness, see Tennessee-Carolina Trans.
Co., 291 N.C. at 629, 231 S.E.2d at 603, so as to deprive it of a
substantial right, thereby justifying an immediate appeal, see
Dworsky v. Insurance Co., 49 N.C. App. 446, 448, 271 S.E.2d 522,
523 (1980).
Notwithstanding, Cape Fear interjects that our Supreme Court
vacated, see Crist, 326 N.C. at 330, 389 S.E.2d at 44, and thus
overruled, this Court's earlier Crist decision dismissing as
interlocutory the defendant's appeal of a trial court's order
prohibiting ex parte contact with the plaintiff's non-party
treating physicians, see Crist v. Moffatt, 92 N.C. App. 520, 523,
374 S.E.2d 487, 488 (1988). In the Court of Appeals opinion, we
held the order appealed from did not “deprive[] defendant of any
right, substantial or otherwise.” Id. at 520, 374 S.E.2d at 488.
Contrary to Cape Fear's assertion, however, the Supreme Court
did not overrule our determination that a substantial right was not
affected, but rather acknowledged the appeal was interlocutory and
nonetheless elected to review the case pursuant to itsdiscretionary powers “'to review upon appeal any decision of the
courts below, upon any matter of law or legal inference,'” Crist,
326 N.C. at 330, 389 S.E.2d at 44 (citing N.C. Const., art. IV, §
12(1)); see also Lea Company v. N.C. Bd. of Transportation, 317
N.C. 254, 263, 345 S.E.2d 355, 360 (1986) (supervisory powers
provided in art. IV, § 12(1) rarely utilized, but may be invoked
“to promote the expeditious administration of justice”).
Ultimately, moreover, the Supreme Court affirmed the trial court's
order prohibiting ex parte contact with the plaintiff's non-party
treating physicians. Crist, 326 N.C. at 337, 389 S.E.2d at 48.
In sum, because Cape Fear's appeal is interlocutory and Cape
Fear has failed to show the Order affects a substantial right,
plaintiffs' motion to dismiss the appeal must be allowed. See
Liggett Group, 113 N.C. App. at 23-24, 437 S.E.2d at 677.
Appeal dismissed.
Judges LEWIS and EDMUNDS concur.
*** Converted from WordPerfect ***