1. Appeal and Error_appealability_discovery order_statutory privilege--substantial
right
The appeal of an interlocutory discovery order was not premature because it fell within an
exception for a party asserting a statutory privilege which directly relates to the matter to be
disclosed.
2. Discovery_peer review reports_nursing homes_effective dates
The trial court did not abuse its discretion by concluding that nursing home reports were
not protected by any peer review privilege and granting a motion to compel production.
Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by Adam
Stein, and Henson Fuerst, P.A., by Thomas W. Henson, Jr., for
plaintiff-appellee.
Yates, McLamb & Weyher, LLP, by Michael C. Hurley and Erin D.
McNeil, for defendant-appellants.
WYNN, Judge.
In North Carolina, orders regarding discovery matters will not
be upset on appeal absent a showing of abuse of discretion. Velez
v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 595, 551
S.E.2d 873, 877 (2001). Here, Defendants (who operate a nursing
home) assert the trial court erred by compelling the production of
statutory peer review documents that were privileged under N.C.
Gen. Stat. § 90-21.22A(c) (2003). Because nursing home privilegesare covered under N.C. Gen. Stat. § 131E-107 which at the time of
the trial court's order contained no protection from discovery of
materials produced by nursing home peer review committees, we
uphold the trial court's order compelling discovery.
In August 2003, Plaintiff Deborah Windman brought actions
against Defendants Britthaven, Inc. d/b/a Britthaven of Louisburg
and Hillco, Ltd., seeking damages for the death of her father,
James Pierce, while he resided at Defendants' nursing home
facility. She alleged that Mr. Pierce suffered damages including
a broken hip, pain and suffering, and wrongful death as a result of
Britthaven's negligence.
In October 2003, Ms. Windman served Britthaven with Requests
for Production of Documents seeking, inter alia, “[a]ny and all
incident/accident reports, unusual occurrence reports, or various
reports in your control which relate or pertain in any way to James
L. Pierce, including, but not limited to, any incident reports
submitted to the N.C. Department of Human Resources as required by
NCAC T10 :03H.0317(c).” In response, Britthaven asserted the
documents were protected from discovery under the statutory peer
review privileges of N.C. Gen. Stat. § 90-21.22A(c) (2003).
Thereafter, Ms. Windman filed a Motion to Compel production of the
documents and Britthaven filed a Motion for Protective Order.
After reviewing the incident report documents in camera, the
trial judge granted Ms. Windman's Motion to Compel and denied
Britthaven's Motion for Protective Order. From this Order,
Britthaven appeals. _________________________________________
[1] Preliminarily, we observe that the trial court's order
compelling discovery is interlocutory from which there is generally
no right to appeal. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003);
Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381
(1950) (An order 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 rights
of all parties involved in the controversy.).
Here, Britthaven claims a right to appeal based upon the
established exception that delaying this appeal would prejudice a
substantial right. See N.C. Dep't of Transp. v. Page, 119 N.C.
App. 730, 734, 460 S.E.2d 332, 334 (1995); Liggett Group Inc. v.
Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993).
Indeed, although discovery orders do not generally affect
substantial rights, we find merit in Britthaven's assertion that
this appeal falls under one of the recognized narrow exceptions to
that rule _- where 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. Sharpe v. Worland,
351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). Because Britthaven
asserts that the ordered documents were protected from discovery
under section 90-21.22A of the North Carolina General Statutes and
we find that that assertion is not frivolous or insubstantial, we
hold that the discovery order affects a substantial right. Id. Accordingly, we deny Ms. Windman's motion to dismiss this appeal as
interlocutory.
[2] On appeal, Britthaven argues that the trial court abused
its discretion in concluding that the documents produced for in
camera inspection were not protected by any peer review privilege.
We disagree.
“It is 'well established that orders regarding discovery
matters are within the discretion of the trial court and will not
be upset on appeal absent a showing of abuse of that discretion.'”
Velez, 144 N.C. App. at 595, 551 S.E.2d at 877 (quoting Evans v.
United Servs. Auto Ass'n, 142 N.C. App. 18, 27, 541 S.E.2d 782,
788, disc. review denied, 353 N.C. 371, 547 S.E.2d 810 (2001)).
Therefore, we review the trial court's order granting Ms. Windman's
Motion to Compel for abuse of discretion.
Britthaven contends that the incident/accident reports are
protected by section 90-21.22A(c) of the North Carolina General
Statutes which, in part, states:
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 within the
meaning of G.S. 132-1, 131E-309, or 58-2-100;
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, a PSO licensed under
Article 17 of Chapter 131E of the General
Statutes, an ambulatory surgical facility
licensed under Chapter 131E of the General
Statutes, or a hospital licensed under Chapter
122C or Chapter 131E of the General Statutes
or that is owned or operated by the State[.]
N.C. Gen. Stat. § 90-21.22A(c) (2003). However, for this section
to protect the documents at issue from discovery, Britthaven must
fit into one of the following four categories: (1) a provider of
health care services who directly provides services and is licensed
under Chapter 90; (2) a PSO licensed under Article 17 of Chapter
131E of the General Statutes; (3) an ambulatory surgical facility
licensed under Chapter 131E of the General Statutes, or (4) a
hospital licensed under Chapter 122C or Chapter 131E of the General
Statutes or that is owned or operated by the State. N.C. Gen.
Stat. § 90-21.22A(c). Nursing homes are licensed under the Nursing
Home Licensure Act which is located in Article 6, Chapter 131E of
the North Carolina General Statutes. Nursing homes do not fit into
any of the four categories of health care providers whose records
and materials from medical review committees are protected from
discovery. Therefore, section 90-21.22A does not protect
Britthaven's incident/accident reports from discovery.
Instead, Section 131E-107 of the North Carolina General
Statutes addresses peer review committees for nursing homes. At
the time of the trial court's order, section 131E-107 contained no
protection from discovery for any materials produced by the peer
review committees. N.C. Gen. Stat. § 131E-107 (2003). However,
section 131E-107 was recently amended to protect records and
materials produced by peer review committees from discovery. N.C.
Gen. Stat. § 131E-107(b) (2005). The amendment became effective 2
August 2004, several months after the 17 May 2004 order compellingdiscovery and therefore does not apply to this case. 2004 N.C.
Sess. Laws 149, s.2.2.
As neither section 90-21.22A nor section 131E-107 protect the
incident/accident reports from discovery, the trial court did not
err in concluding that “[t]he reports requested by the plaintiff
are not protected by any peer review privilege of state and federal
law.” Accordingly, the trial court did not abuse its discretion in
granting Ms. Windman's Motion to Compel the in camera documents.
Affirmed.
Judges CALABRIA and LEVINSON concur.
*** Converted from WordPerfect ***