1. Appeal and Error--appealability--discovery order--interlocutory--substantial right
The appeal of a discovery order was interlocutory but involved a substantial right where a
doctor who was a defendant in a medical malpractice case asserted a statutory privilege
concerning his drug abuse.
2. Medical Malpractice--discovery--physician's drug abuse--impaired physician's
program
An order should have been issued in a medical malpractice case protecting from
discovery a physician's participation in an impaired physicians program. However, N.C.G.S. §
90-21.22, which protects participation in these programs, does not insulate defendant from
discovery of records or information unrelated to participation in the program, including his own
knowledge of his drug abuse.
3. Medical Malpractice--discovery--physician's drug abuse--credentialing committee
A physician who was the defendant in a medical malpractice action could not invoke
N.C.G.S. § 131E-95(b) to shield himself from answering deposition questions about his own
drug abuse merely because he disclosed those details during credentialing committee
proceedings. However, on remand, the trial court is to determine whether other credentialing
committee information sought by plaintiffs is privileged.
4. Medical Malpractice--discovery--physician's drug abuse--credentialing committee--
presence of plaintiff's counsel
A physician who was the defendant in a medical malpractice action was not prejudiced
through the improper presence of plaintiff's attorney at a credentialing committee hearing. The
record discloses that plaintiffs obtained evidence of defendant's drug abuse from separate, public
records.
CALABRIA, Judge.
James A. Barnes, Jr., M.D., (“Dr. Barnes”) appeals a discovery
order that compels him to provide deposition testimony regarding
the details of his history of drug abuse and grants in part his
motion for a protective order pursuant to N.C. Gen. Stat. § 131E-
95(b) (2003). The appeal additionally involves the trial court's
failure to address the privilege afforded under N.C. Gen. Stat. §
90-21.22 (2003). We affirm in part and remand.
On 25 February 2000, Emily M. Armstrong (the “child”) was born
to Sandra Armstrong (“Mrs. Armstrong”) and William Earl Armstrong
(“Mr. Armstrong”) at Catawba Memorial Hospital, Inc., now known as
Catawba Valley Medical Center, Inc. (“Catawba Memorial”). Dr.
Barnes, Mrs. Armstrong's obstetrician, managed her labor and
delivered the child by cesarean section. Soon after birth, medical
staff discovered the child had a brain injury. The child, through
her guardian ad litem, Mrs. Armstrong, and Mr. Armstrong
(collectively “plaintiffs”) filed this action alleging that thechild's brain injury resulted from the medical malpractice and
negligence of Dr. Barnes, Catawba Memorial, and Dr. Barnes'
employer, Newton Women's Care, P.A., (collectively “defendants”)
and from the negligent oversight and retention of Dr. Barnes by
Catawba Memorial and Newton Women's Care, P.A.
Dr. Barnes has a history of drug abuse, which started in 1988
during his second year of residency. At that time, he sought help
and treatment through the North Carolina Physicians Health Program
(the “PHP”), an organization allied with the North Carolina Medical
Board (the “Board”) and created to aid impaired physicians. In
1991, Dr. Barnes completed treatment through the PHP, finished his
residency, and practiced obstetrics and gynecology with a group
practice in Catawba County.
In December 1993, Dr. Barnes relapsed and started abusing
drugs again. As a result, his employment with the group practice
was terminated two months later. In March 1994, Dr. Barnes sought
professional help through the PHP and voluntarily surrendered his
medical license to the Board. The Board issued Dr. Barnes a
temporary medical license, which required periodic re-issuance,
dependant on his compliance with mandatory drug abuse monitoring
through the PHP (the “PHP drug monitoring”).
In December 1994, Dr. Barnes started his own practice, Newton
Women's Care, P.A., then initiated the credentialing process
required by Catawba Memorial to regain medical staff privileges at
its facilities. As part of this process, in May 1995, the Catawba
Memorial credentialing committee (the “credentialing committee”)required Dr. Barnes to appear and testify before them. Two months
later, the credentialing committee granted Dr. Barnes medical staff
privileges at Catawba Memorial conditioned upon his participation
in drug abuse monitoring.
Dr. Barnes was monitored and complied for a number of years.
However, during his deposition for the malpractice action, Dr.
Barnes admitted he had relapsed and started abusing drugs again in
April 2000. He obtained drugs by writing prescriptions for
fictitious patients and filling the prescriptions in local
pharmacies. In May 2000, his drug abuse was discovered through the
PHP drug monitoring. The same month, he closed his practice and
voluntarily surrendered his medical license to the Board. Dr.
Barnes stated he was not abusing drugs during Mrs. Armstrong's
prenatal care nor during the month or on the day the child was
delivered.
During the deposition, plaintiffs asked Dr. Barnes several
questions concerning the details of his drug abuse and his
treatment as well as the proceedings leading to his credentialing
at Catawba Memorial and the PHP drug monitoring. Dr. Barnes'
counsel objected to and instructed Dr. Barnes not to answer the
questions. On 9 September 2003, plaintiffs filed a motion to
compel Dr. Barnes to answer discovery, including deposition
questions regarding his history of drug abuse and the process of
his re-acquiring privileges at Catawba Memorial. Two weeks later,
Dr. Barnes filed a motion for a protective order contending these
matters were privileged. On 9 October 2003, the trial courtentered a discovery order requiring Dr. Barnes to answer all
deposition questions except the following:
Dr. Barnes does not have to give deposition
testimony about the testimony he gave to the
[Catawba Memorial] medical review committee or
about the evidence he presented at the medical
review committee hearing. Dr. Barnes does
have to answer deposition questions even if
the same questions were asked at the medical
review committee [hearing].
Dr. Barnes appeals asserting the discovery order fails to address
his statutory privilege under N.C. Gen. Stat. § 90-21.22(e) and
improperly requires the disclosure of statutorily privileged
matters.
[1] Initially, we address the interlocutory nature of this
appeal. The discovery order from which Dr. Barnes appeals is
interlocutory because it “does not determine the issues but directs
some further proceeding preliminary to a final decree.” McDonald
v. Skeen, 152 N.C. App. 228, 229-30, 567 S.E.2d 209, 211 (2002).
Although an interlocutory order is generally not immediately
appealable, such an order may be appealable “if it affects a
substantial right.” Mabrey v. Smith, 144 N.C. App. 119, 121, 548
S.E.2d 183, 185 (2001). “[W]hen . . . 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 under [N.C. Gen. Stat.
§§] 1-277(a) and 7A-27(d)(1) [(2003)].” Sharpe v. Worland, 351
N.C. 159, 166, 522 S.E.2d 577, 581 (1999) (holding an interlocutory
discovery order affects a substantial right when a privilege underN.C. Gen. Stat. § 90-21.22 is asserted and remanding the appeal to
this Court for a decision on the merits) (“Sharpe I”). In the
instant case, Dr. Barnes' assertions of statutory privilege relate
directly to the matters to be disclosed under the trial court's
interlocutory discovery order. Accordingly, we hold the challenged
discovery order affects a substantial right, and the instant appeal
is properly before us.
[2] Dr. Barnes first asserts the trial court erred by failing
to enter a protective order addressing his privilege under N.C.
Gen. Stat. § 90-21.22(e), which protects information regarding
participation in an impaired physicians program. We agree.
North Carolina General Statutes § 90-21.22 provides for the
establishment of peer review agreements between the Board and the
North Carolina Medical Society, as well as its local components.
These agreements facilitate peer review activities, which include
programs to aid impaired physicians, like the PHP. Id. Pursuant
to N.C. Gen. Stat. § 90-21.22(e):
Any confidential patient information and other
nonpublic information acquired, created, or
used in good faith by [the North Carolina
Medical Society or its local components]
pursuant to this section shall remain
confidential and shall not be subject to
discovery or subpoena in a civil case. No
person participating in good faith in the peer
review or impaired physician . . . programs of
this section shall be required in a civil case
to disclose any information acquired or
opinions, recommendations, or evaluations
acquired or developed solely in the course of
participating in any agreements pursuant to
this section.
In the instant case, Dr. Barnes participated in the PHP.
During discovery, plaintiffs posed questions concerning details of
his treatment and participation. In response, Dr. Barnes moved for
a protective order covering the details of his PHP treatment and
participation. However, the trial court failed to enter an order
pursuant to N.C. Gen. Stat. § 90-21.22(e) protecting from discovery
the matters privileged under the statute. Accordingly, we hold the
trial court erred by failing to enter an order in favor of Dr.
Barnes protecting from discovery those matters privileged under
N.C. Gen. Stat. § 90-21.22(e), and we remand.
In arguing this issue, Dr. Barnes also more specifically
contends that the N.C. Gen. Stat. § 90-21.22(e) privilege extends
to all details of his drug abuse. Since it is likely to recur upon
remand, we address this contention. In determining whether the
details of his drug abuse are privileged, we recognize the General
Assembly enacted N.C. Gen. Stat. § 90-21.22 to create a broad
privilege that would “encourage health care providers to seek
treatment for their impairments.” Sharpe v. Worland, 137 N.C.
App. 82, 87, 527 S.E.2d 75, 78 (2000) (interpreting N.C. Gen. Stat.
§ 90-21.22(e) upon remand from Sharpe I) (“Sharpe II”). In Sharpe
II, this Court held that documents concerning the defendant
doctor's participation in the PHP were privileged under N.C. Gen.
Stat. § 90-21.22(e) even though they were released to the defendant
hospital. Id., 137 N.C. App. at 89, 527 S.E. 2d at 79-80.
Unlike the documents protected in Sharpe II and contrary to
Dr. Barnes' contention, nothing in N.C. Gen. Stat. § 90-21.22evinces a legislative intent to insulate a participant from
disclosing the details of his drug abuse merely because he related
the details of his drug abuse to a society administering an
impaired physicians program during the course of his participation
in that program. Such a holding would allow a participant in an
impaired physician program to use the program as a shield to escape
liability for his negligence by foreclosing any meaningful
discovery by an injured party. This was not the intended function
of this statutory privilege. Although the statute protects a
physician's participation in an impaired physicians program, it
does not insulate him from discovery of records or information
unrelated to his participation in such a program. Accordingly, we
hold Dr. Barnes may not invoke the privilege under N.C. Gen. Stat.
§ 90-21.22(e) to shield the details of his drug abuse from
discovery to the extent his knowledge of those details exists
irrespective of his participation in the PHP.
[3] Dr. Barnes next asserts, based on N.C. Gen. Stat. §§ 131E-
95(b), 90-21.22A(c), and 131E-97.2 (2003), that the trial court
erred by requiring him to answer deposition questions even if the
same questions were asked at the credentialing committee hearing
(the “hearing”). Specifically, Dr. Barnes argues the details of
his drug abuse -- as disclosed to the credentialing committee
during the hearing -- and the details of his credentialing are
privileged under these three statutory provisions.
We first consider N.C. Gen. Stat. § 131E-95(b), which
provides: The proceedings of a medical review committee,
the records and materials it produces and the
materials it considers shall be confidential
and not considered public records . . . and
shall not be subject to discovery or
introduction into evidence in any civil action
against . . . a provider of professional
health services which results from matters
which are the subject of evaluation and review
by the committee. No person who was in
attendance at a meeting of the committee shall
be required to testify in any civil action as
to any evidence or other matters produced or
presented during the proceedings of the
committee or as to any findings,
recommendations, evaluations, opinions, or
other actions of the committee or its members.
However, information, documents, or records
otherwise available are not immune from
discovery or use in a civil action merely
because they were presented during proceedings
of the committee. A member of the committee
or a person who testifies before the committee
may testify in a civil action but cannot be
asked about his testimony before the committee
or any opinions formed as a result of the
committee hearings.
(Emphasis added). Under N.C. Gen. Stat. § 131E-76(5) (2003), a
“medical review committee” is defined to include a committee
responsible for “medical staff credentialing.” Therefore, a
medical staff credentialing committee, such as the one here, falls
within the terms of N.C. Gen. Stat. § 131E-95(b). Accord Shelton
v. Morehead Memorial Hospital, 318 N.C. 76, 87, 347 S.E.2d 824, 831
(1986).
In Shelton, our Supreme Court determined the purpose of N.C.
Gen. Stat. § 131E-95(b) is to promote medical staff candor and
medical review committee objectivity. Shelton, 318 N.C. at 83, 347
S.E.2d at 829. See also Whisenhunt v. Zammit, 86 N.C. App. 425,
427, 358 S.E.2d 114, 116 (1987). The statute accomplishes thispurpose by providing a broad privilege that protects “a medical
review committee's (1) proceedings; (2) records and materials it
produces; and (3) materials it considers.” Shelton, 318 N.C. at
83, 347 S.E.2d at 829. The statute also accomplishes a balance
between this broad privilege and the interest of allowing
reasonable discovery by permitting “access to information not
generated by the committee itself but merely presented to it . . .
.” Id. Therefore, the privilege referenced in the statute does
not extend to “information . . . available[] from original sources
other than the medical review committee . . . merely because it was
presented during medical review committee proceedings[,]” and the
statute's purpose is not violated by allowing materials otherwise
available to “be discovered and used in evidence even though they
were considered by [a] medical review committee.” Id., 318 N.C. at
83-84, 347 S.E.2d at 829.
In Shelton, the plaintiffs sought discovery from the defendant
hospital's medical review committee records and information
regarding the review proceedings with respect to the defendant
doctor. Id., 318 N.C. at 81, 347 S.E.2d at 828. Similarly, the
plaintiffs in Whisenhunt sought discovery from a hospital of its
“credentialing records” concerning the defendant doctor.
Whisenhunt, 86 N.C. App. at 426, 358 S.E.2d at 115. Each decision
held that the information sought was not discoverable because the
plain language of N.C. Gen. Stat. § 131E-95(b) extends a statutory
privilege to the records produced by a medical review committee and
the information concerning its proceedings. Shelton, 318 N.C. at82-83, 347 S.E.2d at 829; Whisenhunt, 86 N.C. App. at 428, 358
S.E.2d at 116.
Dr. Barnes contends that, as the information regarding the
review proceedings in Shelton and Whisenhunt was not discoverable,
the information sought by plaintiffs in the instant case is not
information from any original source other than the credentialing
committee. However here, plaintiffs seek disclosure of the details
of Dr. Barnes' drug abuse from Dr. Barnes. Unlike the hospitals in
Shelton and Whisenhunt, Dr. Barnes is an original source with
respect to the information sought because he created and knows the
details of his drug abuse outside the privileged proceedings of the
credentialing committee and the records it produced. Therefore,
Dr. Barnes, as an original source, may not invoke N.C. Gen. Stat.
§ 131E-95(b) to shield himself from answering deposition questions
regarding the details of his drug abuse merely because he disclosed
those details during the credentialing committee proceedings and
those details were presumably included in the committee's records.
North Carolina General Statutes § 90-21.22A(c) is functionally
identical to N.C. Gen. Stat. § 131E-95(b) in its application to the
instant case. Under N.C. Gen. Stat. § 90-21.22A(c):
The proceedings of a medical review committee,
the records and materials it produces and the
materials it considers shall be confidential
and not considered public records . . . and
shall not be subject to discovery or
introduction into evidence in any civil action
against a provider of health care services who
directly provides services and is licensed
under this Chapter . . . . No person who was
in attendance at a meeting of the committee
shall be required to testify in any civil
action as to any evidence or other mattersproduced or presented during the proceedings
of the committee or as to any findings,
recommendations, evaluations, opinions, or
other actions of the committee or its members.
However, information, documents, or records
otherwise available are not immune from
discovery or use in a civil action merely
because they were presented during proceedings
of the committee. A member of the committee
may testify in a civil action but cannot be
asked about his or her testimony before the
committee or any opinions formed as a result
of the committee hearings.
(Emphasis added). We also note a medical staff or credentialing
committee falls within the terms of N.C. Gen. Stat. § 90-21.22A(c).
See N.C. Gen. Stat. § 90-21.22A(a) (2003) (defining a “medical
review committee” to include a committee for “provider
credentialing”). Therefore, our above analysis regarding the
privilege provided under N.C. Gen. Stat. § 131E-95(b) applies
equally to N.C. Gen. Stat. § 90-21.22A(c), and Dr. Barnes, as an
original source, may not invoke the privilege provided under N.C.
Gen. Stat. § 90-21.22A(c) to shield himself from answering
deposition questions concerning the details of his drug abuse.
Pursuant to N.C. Gen. Stat. § 131E-97.2:
Information acquired by a . . . hospital, or
by persons acting for or on behalf of a
hospital, in connection with the credentialing
and peer review of persons having or applying
for privileges to practice in the hospital is
confidential and is not a public record . . .;
provided that information otherwise available
to the public shall not become confidential
merely because it was acquired by the hospital
or by persons acting for or on behalf of the
hospital.
(Emphasis added). The plain language of this statute extends a
privilege only to “[i]nformation acquired” by hospitals, or personsacting on their behalf, “in connection with the credentialing and
peer review of persons having or applying for privileges to
practice in the hospital . . . .” Id. As discussed above, Dr.
Barnes did not acquire knowledge of the details of his drug abuse
through the credentialing committee's proceedings. Nor was he
acting on behalf of Catawba Memorial in connection with the
credentialing committee's review. Therefore, contrary to Dr.
Barnes' assertion, the privilege provided under N.C. Gen. Stat. §
131E-97.2 is inapplicable here.
Accordingly, we hold the trial court did not violate the
statutory privileges provided under N.C. Gen. Stat. §§ 131E-95(b),
90-21.22A(c), or 131E-97.2 to the extent it required Dr. Barnes, an
original source with respect to the details of his drug abuse, to
answer all questions concerning the details of his drug abuse even
if the same questions were asked at the credentialing committee
hearing. However, the trial court's order does not address how the
privilege applies to other aspects of the credentialing committee's
proceedings, the records and materials it produced, and the
materials it considered. Therefore, upon remand, the trial court
is instructed to determine whether other information sought by
plaintiffs is of a type privileged under N.C. Gen. Stat. §§ 131E-
95(b) and 90-21.22A(c) and to amend its order to protect any such
information.
[4] Dr. Barnes finally asserts the trial court erred by
requiring him to answer questions even if they were asked at the
credentialing committee hearing because plaintiffs' counsel wasimproperly allowed to attend the hearing and was improperly
provided hearing documents and a partial transcript. Specifically,
Dr. Barnes argues the opposing counsel's knowledge of the hearing
prejudices him because (1) plaintiffs have access to documents and
testimonial records that ordinarily would be unavailable through
discovery and (2) the counsel's presence at the hearing makes it
impossible to distinguish between information from original sources
and information generated by the credentialing committee. Dr.
Barnes contends this prejudice can only be prevented by forbidding
any further discovery regarding his drug abuse and credentialing.
Assuming arguendo plaintiffs' counsel was improperly allowed
to attend the hearing and was improperly provided with hearing
documents, Dr. Barnes will be afforded his full statutory privilege
and will be required to answer only those questions concerning the
details of his drug abuse, which are not privileged. The record
discloses that plaintiffs obtained evidence of Dr. Barnes' drug
abuse from public records separate from their counsel's knowledge
of the hearing, in particular: (1) the 31 August 1994 Board of
Medical Examiners Order regarding Dr. Barnes, which stated Dr.
Barnes had a history of drug abuse, had relapsed, and agreed to
surrender his medical license for the issuance of a temporary
license and (2) newspaper articles regarding Dr. Barnes'
disciplinary history and surrender of his license. Therefore,
public records would inform any plaintiff that Dr. Barnes had a
drug abuse problem. Accordingly, we hold no prejudice will inure
to Dr. Barnes through discovery due to opposing counsel havinglearned of his drug abuse not only from the public records but also
presumably from the hearing.
We have carefully reviewed Dr. Barnes' remaining arguments and
consider them to be without merit. For the foregoing reasons, we
(1) remand to the trial court for entry of an order in favor of Dr.
Barnes protecting those matters privileged under N.C. Gen. Stat. §
90-21.22(e); (2) affirm the trial court's order requiring Dr.
Barnes to answer deposition questions regarding the details of his
drug abuse even if the same questions were asked at the
credentialing hearing; and (3) instruct the trial court upon remand
to determine whether other information sought by plaintiffs is of
a type privileged under N.C. Gen. Stat. §§ 131E-95(b) and 90-
21.22A(c) and to amend its order to protect any such information.
Affirmed in part and remanded.
Chief Judge MARTIN and Judge GEER concur.
*** Converted from WordPerfect ***