Appeal by defendant from order dated 2 April 2002 by Judge L.
Todd Burke in Guilford County Superior Court. Heard in the Court
of Appeals 26 March 2003.
Gray, Newell, Johnson & Blackmon L.L.P., by Mark V.L. Gray,
for plaintiff appellee.
Davis & Hamrick, L.L.P., by H. Lee Davis, Jr. and Ann C. Rowe,
for defendant appellant.
BRYANT, Judge.
Sharon Kaye Wright (defendant) appeals a discovery order dated
2 April 2002 requiring the disclosure of her medical records to
Jennifer Denise Mims (plaintiff).
On 2 August 2001, plaintiff filed a complaint alleging
defendant negligently operated a vehicle on 26 August 1998, causing
a collision with the vehicle driven by plaintiff that resulted in
personal injuries to plaintiff. In her answer filed 1 October
2001, defendant denied any negligence but argued in the alternative
that to the extent she was negligent, plaintiff's claim was barred
by her own contributory negligence. In plaintiff's first request
for production of documents dated 15 November 2001, defendant wasasked to turn over to plaintiff copies of “all [her] medical
records . . . covering the period five (5) years proceeding August
26, 1998 to the present day.” Following defendant's objection to
this request, plaintiff filed a motion to compel discovery.
In an order dated 2 April 2002, the trial court made the
following findings:
10. Plaintiff, through counsel, served
Plaintiff's First Set of Interrogatories
to Defendant and Plaintiff's First
Request for Production of Documents
Addressed to the Defendant upon counsel
for [d]efendant on or about November 15,
2001.
. . . .
12. . . . Defendant objected to producing all
of [d]efendant's medical records for the
time period of five years prior to the
accident through the present, as vague,
overly broad, unduly burdensome,
irrelevant and not calculated to lead to
the discovery of relevant or admissible
evidence and as a violation of the
physician-patient privilege.
13. Defendant offered to the [c]ourt and to
[p]laintiff's counsel to answer the
questions as to whether . . . [d]efendant
had any eye condition or other medical
condition that would affect her driving
at the time of the accident and such
offer was rejected by [p]laintiff's
counsel and the [c]ourt.
The trial court then concluded:
7. The [d]efendant, by driving, waived the
physician-patient privilege, and the
medical records of [d]efendant are
relevant and material and may lead to the
discovery of admissible or relevant
evidence and should be produced in
discovery.
8. Plaintiff is entitled to obtain and
review [d]efendant's medical records for
the time period of five years prior to
the date of the accident . . . through
the present.
9. Defendant's argument that [d]efendant's
medical records are privileged and that
said physician-patient privilege has not
in any way been waived, as [d]efendant is
not claiming an injury or pursuing a
claim for an injury, is denied by the
[c]ourt.
10. Defendant's suggestion that the [c]ourt
review [d]efendant's medical records in
camera and that the Court then determine
whether any of [d]efendant's medical
records are relevant to the accident at
issue and should be produced to
[p]laintiff was denied by the [c]ourt.
11. The [c]ourt concludes that its ruling
requiring . . . [d]efendant to produce
her medical records affects a substantial
right, that is her right to
confidentiality of the physician-patient
privilege.
________________________
The issues are whether: (I) the discovery order appealed from
affects a substantial right; (II) defendant impliedly waived the
physician-patient privilege; and (III) the interests of justice
demanded disclosure even if the privilege was not waived.
I
As a general rule, discovery orders are interlocutory and
therefore not immediately appealable.
Romig v. Jefferson-Pilot
Life Ins. Co., 132 N.C. App. 682, 685, 513 S.E.2d 598, 600 (1999),
aff'd, 351 N.C. 349, 524 S.E.2d 804 (2000) (per curiam);
see Sharpe
v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (“[a]discovery order is interlocutory because it does not 'dispose of
the case, but instead leave[s] it for further action by the trial
court in order to settle and determine the entire controversy'”).
Such orders are, however, immediately appealable if “delaying the
appeal will irreparably impair a substantial right of the party.”
Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511
S.E.2d 309, 311 (1999);
see Sharpe, 351 N.C. at 162, 522 S.E.2d at
579 (substantial right affected if order “'deprives the appealing
party of a substantial right which will be lost if the order is not
reviewed before a final judgment is entered'”). “[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
. . . .”
Sharpe, 351 N.C. at 166, 522 S.E.2d at 581;
see also
Lockwood v. McCaskill, 261 N.C. 754, 757, 136 S.E.2d 67, 69 (1964)
(noting that once a physician were to testify at a deposition
hearing concerning privileged matters, as required by the trial
court's discovery order, the statutory physician-patient privilege
would be destroyed). Accordingly, defendant's appeal is properly
before this Court. We now consider whether the trial court abused
its discretion in granting plaintiff's motion to compel production
of defendant's medical records.
See Velez v. Dick Keffer
Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 595, 551 S.E.2d 873,
877 (2001) (orders regarding discovery matters are reviewed for
abuse of discretion).
II
Pursuant to Rule 26(b)(1) of the North Carolina Rules of Civil
Procedure, “[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in
the pending action, whether it relates to the claim or defense of
the party seeking discovery or to the claim or defense of any other
party.” N.C.G.S. § 1A-1, Rule 26(b)(1) (2001). Any unprivileged
matter that is relevant is thus discoverable. On the other hand,
if the matter of which discovery is sought is privileged, it is not
discoverable, even if relevant, “unless the interests of justice
outweigh the protected privilege.”
Shellhorn v. Brad Ragan, Inc.,
38 N.C. App. 310, 314, 248 S.E.2d 103, 106 (1978).
Defendant argues her medical records were protected by the
physician-patient privilege and that the trial court erred in
concluding she had impliedly waived that privilege “by driving.”
We agree. Defendant's medical records are protected by N.C. Gen.
Stat. §
8-53, which sets forth the physician-patient privilege.
See N.C.G.S. § 8-53 (2001). Because this statutory privilege is to
be strictly construed,
Sims v. Insurance Co., 257 N.C. 32, 36-37,
125 S.E.2d 326, 329-30 (1962), the patient bears the burden of
establishing the existence of the privilege and objecting to the
discovery of such privileged information,
Adams v. Lovette, 105
N.C. App. 23, 28, 411 S.E.2d 620, 624,
aff'd, 332 N.C. 659, 422
S.E.2d 575 (1992) (per curiam). Moreover, the privilege is not
absolute and may be waived, either by express waiver or by waiver
implied from the patient's conduct.
Id. at 28-29, 411 S.E.2d at624.
In this case, there is absolutely no authority to support the
trial court's conclusion that defendant waived the physician-
patient privilege simply by driving. Instead, our courts have
ruled that implied waivers occur where: the patient fails to object
to testimony on the privileged matter; the patient herself calls
the physician as a witness and examines him as to the patient's
physical condition; or the patient testifies to the communication
between herself and the physician.
Capps v. Lynch, 253 N.C. 18,
23, 116 S.E.2d 137, 141 (1960). Subsequent case law has also
recognized an implied waiver where a patient by bringing an action,
counterclaim, or defense directly placed her medical condition at
issue.
See Jones v. Asheville Radiological Grp., 134 N.C. App.
520, 531, 518 S.E.2d 528, 535 (1999) (Walker, J., dissenting in
part) (citing
Cates v. Wilson, 321 N.C. 1, 17, 361 S.E.2d 734, 744
(1987) (Mitchell, J., concurring in the result)),
rev'd, 351 N.C.
348, 524 S.E.2d 804 (2000) (per curiam);
see also State v. Smith,
347 N.C. 453, 461-62, 496 S.E.2d 357, 362 (1998) (where the
defendant sought to suppress his statements to the police by
arguing he had been suffering from controlled substance withdrawal
symptoms, the defendant placed at issue his past state of mind, and
the State properly sought to rebut this evidence with his medical
records);
Laznovsky v. Laznovsky, 745 A.2d 1054, 1067 (Md. Ct. App.
2000) (“[w]hen a party-patient places a condition in issue by way
of a claim, counterclaim, or affirmative defense, she waives the
physician-patient privilege as to all matters causally orhistorically related to that condition, and information which would
otherwise be protected from disclosure by the privilege then
becomes subject to discovery”).
Thus, had defendant, through her
answer, placed her medical condition at issue, there would be an
implied waiver of the physician-patient privilege; however,
defendant simply denied plaintiff's allegation of negligence and,
in the alternative, raised the defense of contributory negligence.
As nothing in her answer or subsequent conduct during the course of
discovery opened the door to an inquiry into defendant's medical
history, the trial court abused its discretion in concluding
defendant had waived her privilege.
III
Privileged medical information may still be discoverable if
“disclosure is necessary to a proper administration of justice.”
N.C.G.S. § 8-53. “The decision that disclosure is necessary to a
proper administration of justice 'is one made in the discretion of
the trial judge, and the defendant must show an abuse of discretion
in order to successfully challenge the ruling.'”
Smith, 347 N.C.
at 461, 496 S.E.2d at 362. Whether the trial court has to make a
specific finding that disclosure is necessary for the proper
administration of justice is unclear though.
See id. (“N.C.G.S. §
8-53 does not require such an explicit finding. The finding is
implicit in the admission of the evidence.”);
but see Cates, 321
N.C. at 13, 361 S.E.2d at 742 (“a trial court may permit opinion
evidence by non-party treating physicians only after finding,
pursuant to the statute, that the proper administration of justicenecessitates such testimony”);
Insurance Co. v. Boddie, 194 N.C.
199, 201, 139 S.E. 228, 229 (1927) (the trial court is required to
make a finding, appearing in the record, that disclosure is
necessary to a proper administration of justice). Assuming no such
finding was required in this case, we nevertheless hold that the
record fails to indicate that discovery of defendant's medical
records was warranted.
“The purposes of North Carolina's statutory physician-patient
privilege are to encourage the patient to fully disclose pertinent
information to a physician so that proper treatment may be
prescribed, to protect the patient against public disclosure of
socially stigmatized diseases, and to shield the patient from
self-incrimination.”
Crist v. Moffatt, 326 N.C. 326, 333, 389
S.E.2d 41, 45 (1990). Accordingly, “the proviso [allowing for
compelled disclosure of privileged information] was intended to
refer to exceptional rather than ordinary factual situations.”
Lockwood, 261 N.C. at 758, 136 S.E.2d at 70.
In this case
, there is nothing in the pleadings that would
raise the issue of defendant's medical condition. Plaintiff did
not allege that defendant's physical or medical condition
contributed to the automobile accident. Defendant also did not
counterclaim for any injuries she may have sustained during the
accident. As such, the record is devoid of any allegations which
might lead to a justifiable conclusion that the interests of
justice outweighed the protected privilege.
See Shellhorn, 38 N.C.
App. at 314, 248 S.E.2d at 106. Under these circumstances, thetrial court abused its discretion in compelling discovery of
defendant's medical records.
Reversed.
Judges TIMMONS-GOODSON and GEER concur.
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