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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
ROADWAY EXPRESS, INC., Plaintiff,
MICKEY JOE HAYES and INZONE,
Inc., d/b/a INZONE, Defendants, v. CANDACE SUE HORN, Individually
and as ADMINISTRATRIX of the Estate of MARK JOSEPH HORN,
Filed: 20 June 2006
1. Appeal and Error--appealability_discovery orders_privilege against self-
Interlocutory discovery orders affected a substantial right and were immediately
appealable by defendant where defendant asserted his Fifth Amendment privilege against self-
incrimination and the physician-patient privilege as reasons for not producing documents and
responding to plaintiff's discovery request in an action arising out of an automobile accident.
2. Discovery--medical records--physician-patient privilege
The trial court did not abuse its discretion in an action arising out of an automobile
accident by ordering the production of defendant's medical records in the interest of justice,
because: (1) the results of a blood test are not protected under the Fifth Amendment when the
results of the test are neither testimonial nor communicative; and (2) defendant's medical records
are not protected by the physician-patient privilege since the trial court reviewed the medical
records to determine their relevance to the matter and limited the scope of production, plaintiff
contends defendant's physical or mental condition contributed to the accident, and defendant
asserted the sudden emergency doctrine as an affirmative defense to plaintiff's claims.
3. Discovery--admissions--interrogatories--medications at time of automobile accident
The trial court erred by ordering defendant to respond to plaintiff's second request for
admissions and interrogatories relating to factual information on medications he may have been
under the influence of at the time of an automobile accident, because defendant is entitled to
assert his Fifth Amendment privilege to protect himself from self-incrimination in relation to
prescription drugs defendant may have been under the influence of at the time of the accident.
However, if the trial court determines such responses are essential to evaluate the application of
the sudden emergency doctrine, the trial court must hold that defendant's choice to invoke his
rights not to respond to the request for admissions and interrogatories precludes his assertion of
the sudden emergency defense to plaintiff's allegations.
Appeal by Defendant Mickey Joe Hayes from orders entered 17
June and 30 June 2005 by Judge Anderson D. Cromer and Judge Ronald
E. Spivey, respectively, in Superior Court, Forsyth County
in the Court of Appeals 9 May 2006.
Womble, Carlyle, Sandridge & Rice by Jack M. Strauch, for
plaintiff-appellee Roadway Express, Inc.
Teague, Rotenstreich & Stanaland, LLP by Kenneth B.
Rotenstreich and Paul A. Daniels, for the defendant-appellant
Mickey Joe Hayes.
Brian E. Gates for defendant-appellee Inzone.
Law Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills,
for intervening plaintiff-appellee Constance Sue Horn.
The Fifth Amendment provides a shield against self-
incrimination. U.S. Const. amend. V.
In this case, Defendant
argues that the Fifth Amendment protects him from producing (1) his
medical records and (2) factual information regarding medications
that he may have been under the influence of at the time of the
accident. We uphold the order to produce his medical records but
reverse the order compelling him to disclose factual information
regarding his use of medications.
The facts indicate that on 7 March 2004, Defendant Mickey
Hayes's vehicle collided with a tractor trailer driven by Mark
and owned by Plaintiff Roadway Express, Inc. As a
result of the collision, the tractor trailer struck a bridge
guardrail causing the tractor to detach from the trailer, fall off
the bridge and overturn before landing on an embankment below the
bridge. Mr. Horn died at the scene of the accident.
Plaintiffs Roadway Express, Inc. and Constance Horn, widow of
the truck driver, brought an action against Mr. Hayes and Inzone,
Inc. Plaintiffs alleged that
Mr. Hayes was legally intoxicated
from beverages that he had consumed at Inzone nightclub/sports bar
from which Plaintiffs sought recovery based on its alleged
willful,wanton, and reckless disregard for the rights of others.
During discovery, Plaintiff Roadway Express requested all
medical records regarding Defendant Hayes's medical treatment after
the accident. Defendant objected to the discovery request, arguing
that his medical records were protected by the physician-patient
privilege and his Fifth Amendment right against self-incrimination.
The trial judge ordered Defendant to produce the requested
medical records under seal and conducted an in camera inspection.
Afterwards, on 17 June 2005, the trial judge ordered Defendant to
provide copies of the records to Plaintiff on the condition that:
The records and the information contained
therein are not to be shared with anyone other
than experts retained by the parties (but not
if such experts are also retained by the State
to assist with the criminal prosecution of
Hayes arising out of the subject collision).
Plaintiff also served a set of admissions on Defendant to:
1. Admit that on March 6, 2004, you took the
prescription medication diazepam.
2. Admit that on March 7, 2004, you took the
prescription medication diazepam.
3. Admit that during the early morning of
March 7, 2004, you were under the influence of
the prescription medicine diazepam.
4. Admit that on March 7, 2004, the
prescription medication diazepam was present
in your system.
5. Admit that you consumed alcoholic
beverages during the late evening of March 6,
and the early morning of March 7, 2004, while
knowing diazepam was present in your system.
Additionally, Plaintiff, through interrogatories, asked
whether Defendant had been taking any prescription medications atthe time of the accident, including diazepam. Defendant refused to
respond to Plaintiff's request for admissions or interrogatories
relating to any prescription drugs he may have been under the
influence of at the time of the accident, arguing that such
information was protected under the physician-patient privilege and
the Fifth Amendment.
On 23 June 2005, Plaintiff filed a motion to compel production
of Defendant's responses to Plaintiff's request for admissions and
interrogatories. On 30 June 2005, the trial judge granted
Plaintiff's motion to compel and ordered Defendant to serve
complete responses to Plaintiff's request for admissions and
 From the 17 June 2005 order to produce his medical
, and the 30 June 2005 order to respond to Plaintiff's
request for admissions and interrogatories, Defendant appeals. But
we note that
discovery orders are interlocutory and
immediately appealable unless they affect a substantial right.
Isom v. Bank of America, N.A., 177 N.C. App. __, __, 628 S.E.2d
458, 461 (2006). However, when . . . 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 v.
Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999).
a trial judge's ruling requiring a party to provide evidence over
a Fifth Amendment objection is also immediately appealable. SeeStaton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999)
(reversing trial court's order compelling Defendant's testimony in
civil action where Defendant asserted Fifth Amendment privilege
against self-incrimination). Here, because Defendant Hayes asserts
his Fifth Amendment privilege against self-incrimination and
physician-patient privilege as reasons for not producing documents
and responding to Plaintiff's discovery requests, the orders on
appeal are immediately appealable
The issues on appeal are (I) Do the Fifth Amendment privilege
against self-incrimination and the physician-patient privilege
shield Defendant from producing any and all records related to any
medical treatment that [he] received as a result of the automobile
accident and (II) Does the
Fifth Amendment shield Defendant from
providing factual information regarding medications that he may
have been under the influence of at the time of the accident?
Fifth Amendment protection applies in any type of
proceeding, whether it is criminal, civil, administrative,
investigatory, or adjudicatory. Maness v. Meyers, 419 U.S. 449,
463-64, 42 L. Ed. 2d. 574, 586-87 (1975). The protection exists
not only for evidence which may directly support a criminal
conviction, but for information which would furnish a link in the
chain of evidence that could lead to prosecution, as well as
evidence which an individual reasonably believes could be used
against him in a criminal prosecution. Id. at 461, 42 L. Ed. 2d.at 585 (citation omitted). However, the Fifth Amendment privilege
only applies to testimonial or communicative acts. Schmerber v.
California, 384 U.S. 757, 761, 16 L. Ed. 2d. 908, 914 (1966).
In Schmerber, the United States Supreme Court held that blood
test evidence was neither testimonial nor communicative and
therefore the evidence was admissible. Id. at 765, 16 L. Ed. 2d.
[B]oth federal and state courts have usually held that
[the Fifth Amendment] offers no protection against compulsion to
submit to fingerprinting, photographing, or measurements . . . the
privilege is a bar against compelling 'communications' or
'testimony', but that compulsion which makes a suspect or accused
the source of 'real or physical evidence' does not violate it.
Id. at 764, 16 L. Ed 2d at 916.
Indeed, North Carolina has long recognized the distinction
between compulsory testimonial evidence and compulsory physical
disclosure. State v. Strickland, 276 N.C. 253, 260, 173 S.E.2d
129, 133 (1970).
'The established rule in this jurisdiction is
that '(t)he scope of the privilege against
self-incrimination, in history and in
principle, includes only the process of
testifying by word of mouth or in writing,
i.e., the process of disclosure by utterance.
It has no application to such physical
evidential circumstances as may exist on the
accused's body or about his person.''
Id. (quoting State v. Paschal, 253 N.C. 795, 797, 117 S.E.2d 749,
The facts of this case are analogous to those in Schmerber.
The medical records sought by Plaintiff include a hospital labanalysis and a State Bureau of Investigation lab analysis of
Defendant's blood taken after the accident. As in Schmerber, the
results of Defendant's blood test are not protected under the Fifth
Amendment because the results of the test are neither testimonial
nor communicative. Under the facts of this case, Defendant's Fifth
Amendment right against self-incrimination does not shield him from
producing his medical records.
Likewise, Defendant's medical records are not protected by the
physician-patient privilege. Section 8-53 of the North Carolina
General Statutes provides that [n]o person, duly authorized to
practice physic or surgery, shall be required to disclose any
information which he may have acquired in attending a patient in a
professional character, and which information was necessary to
enable him to prescribe for such patient . . . or to do any act for
him as a surgeon[.] N.C. Gen. Stat. §8-53 (2005). Medical
records are covered by the statute to the extent that the records
contain entries made by physicians and surgeons, or under their
direction, that include information and communications obtained by
the doctor for the purpose of providing care to the patient. Sims
v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 38, 125 S.E.2d
326, 331 (1962).
The physician-patient privilege is strictly construed and the
patient bears the burden of establishing the existence of the
privilege and objecting to the introduction of evidence covered by
the privilege. Mims v. Wright, 157 N.C. App. 339, 342, 578 S.E.2d
606, 609 (2003).
The physician-patient privilege is not anabsolute privilege, and it is in the trial court's discretion to
compel the production of evidence that may be protected by the
privilege if the evidence is needed for a proper administration of
justice. See N.C. Gen. Stat. §8-53. Judges should not hesitate
to require the disclosure where it appears to them to be necessary
in order that the truth be known and justice be done. Sims, 257
N.C. at 39, 125 S.E.2d at 331.
Here, the trial judge methodically ordered Defendant to
produce his medical records. In the initial order ordering the
production of Defendant's medical records under seal for an in
camera review, the trial judge limited the scope of the production
by requesting only those medical records that mention or reflect
the results of any tests performed to determine Defendant's blood
alcohol content and the presence of controlled substances in his
body. It was only after the trial judge reviewed the medical
records and determined their relevance to the matter that he
ordered Defendant to produce them to Plaintiff. Even in the order
requiring Defendant to produce the medical records, the trial judge
limited the scope of production, providing [t]he records and the
information contained therein are not to be shared with anyone
other than experts retained by the parties (but not if such experts
are also retained by the State to assist with the criminal
prosecution of Hayes arising out of the subject collision.)
Defendant's reliance on Mims to support his argument that the
trial court erred in ordering the production of his medical records
in violation of the physician-patient privilege is misplaced. InMims, this Court held that the trial judge abused his discretion in
ordering the production of the defendant's medical records
there was no evidence in the record that they might have [led] to
a justifiable conclusion that the interests of justice outweighed
the protected privilege. Mims, 157 N.C. App. at 344, 578 S.E.2d
Unlike the plaintiffs in Mims, Plaintiff in this case
contends Defendant's physical or medical condition contributed to
the accident. Id. Moreover, Defendant in this case has asserted
the sudden emergency doctrine as an affirmative defense to
Plaintiff's claims, which places his medical condition at the time
of the accident into question.
Thus, in light of Plaintiff's
allegations and Defendant's affirmative defense to those
allegations, there is evidence in the record that may justify the
disclosure of Defendant's medical records in the interest of
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.' State v. Smith, 347
N.C. 453, 461, 496 S.E.2d 357, 362 (1998) (citation omitted). As
we can discern no abuse of the trial court's discretion in ordering
the production of Defendant's medical records in the interest of
justice, we affirm the 17 June 2005 order compelling the production
of Defendant's medical records.
 Defendant further contends the Fifth Amendment protectshim from having to respond to inquiries under the request for
admissions and second set of interrogatories
information about his use of alcohol, diazepam, and any other
medications. We agree.
The Fifth Amendment protects individuals from being compelled
to testify in a way that could incriminate him or might subject him
to fines, penalties, or forfeiture. State v. Pickens
, 346 N.C.
628, 637, 488 S.E.2d 162, 166 (1997). To determine whether the
Fifth Amendment privilege applies, the trial court must evaluate
whether, given the implications of the question and the setting in
which it was asked, a real danger of self-incrimination by the
witness exists. Id.
, 488 S.E.2d at 167.
The court should only
deny the claim of Fifth Amendment privilege if there is no
possibility of such danger. Id
In this case, we cannot say that there is no possibility of
danger for self-incrimination by Defendant in responding to
Plaintiff's request for admissions and interrogatories, which
relate to the prescription drugs Defendant may have been under the
influence of at the time of the accident
Plaintiff argues that
the trial judge's statement in the order compelling Defendant to
respond to the discovery requests that the information is not to
be shared with anyone other than experts retained by the parties
(but not if such experts are also retained by the State to assist
with the criminal prosecution of Hayes arising out of the subject
collision) and persons assisting with the prosecution or defense of
the action[,] cures any concerns about the production of thisevidence in any other proceeding, including a criminal matter. We
hold, however, that this limitation is insufficient to ensure that
Defendant's Fifth Amendments rights are protected and that there is
no possibility of danger of self-incrimination. We, therefore,
conclude the trial court erred when ordering Defendant to respond
to Plaintiff's second request for admissions and interrogatories.
Accordingly, we reverse
the trial court's 30 June 2005 order
compelling Defendant to respond to Plaintiff's second request for
admissions and second set of interrogatories.
Notwithstanding, Defendant's refusal to respond to Plaintiff's
request for admissions and interrogatories related to any
prescription drugs he may have been under the influence of at the
time of the accident may preclude him from asserting certain
affirmative defenses. McKillop v. Onslow County
, 139 N.C. App. 53,
62-63, 532 S.E.2d 594, 600-01 (2000).
This Court has held that if
. . . a defendant pleads an affirmative defense[,] he should not
have it within his power to silence his own adverse testimony when
such testimony is relevant to the . . . defense. Cantwell v.
, 109 N.C. App. 395, 397, 427 S.E.2d 129, 130
the plaintiff was asked about matters that
related to her alleged adulterous activities, and she asserted her
Fifth Amendment privilege against self-incrimination. This Court
held that she could properly assert the Fifth Amendment as a basis
for not testifying regarding the alleged adultery, but that she
could not maintain her alimony claim if she refused to testify.
109 N.C. App. at 398, 427 S.E.2d at 131.
The Court reasoned thatadultery bars alimony and, therefore, without the plaintiff's
testimony, she was not providing the judge with enough information
to make a determination about alimony.
This Court applied similar reasoning in Qurneh v. Colie
N.C. App. 553, 471 S.E.2d 433 (1996). In Qurneh
, the father sought
to obtain custody of his child, but refused to testify about his
illegal drug use based on his right against self-incrimination.
The Court ruled that the trial court correctly found that the
father's refusal to answer questions about his illegal drug
involvement denied the trial court the ability to make a
determination of whether he was fit to have custody of his child.
This Court held that the father could not be compelled to testify
about his illegal substance abuse, but that he could not also
maintain his claim for custody without testifying on this issue
at 558, 471 S.E.2d at 436.
The privilege against self-
incrimination is intended to be a shield and not a sword. Id
(See footnote 1)
In the case sub judice
, Defendant asserted the affirmative
defense of sudden emergency.
(See footnote 2)
Under the sudden emergency doctrine,
a person is not held to the ordinary standard of care, but to the
same standard of care that an ordinarily prudent person would haveused when faced with a similar emergency. Sparks v. Willis
N.C. 25, 28, 44 S.E.2d 343, 344-45 (1947).
Defendant's state of
mind, including whether he was under the influence of prescription
drugs, at the time of the accident must be evaluated to determine
whether Defendant had the ability to act as an ordinarily prudent
person would have acted at the time of the accident.
Upon remand for trial of this matter, our holding permits
Defendant to assert his Fifth Amendment privilege to protect
himself from self-incrimination in responding to Plaintiff's
request for admissions and interrogatories relating to factual
information on medications he may have been under the influence of
at the time of the accident
. However, at trial, if the trial court
determines such responses are essential to evaluate the application
of the sudden emergency doctrine, the trial court must hold that
Defendant's choice to
invoke his rights not to respond to the
request for admissions and interrogatories precludes his assertion
sudden emergency defense to Plaintiff's allegations.
Affirmed in part; reversed in part.
Judges GEER and STEPHENS concur.
Additionally, this Court has recognized that [t]he
finder of fact in a civil cause may use a witness' invocation of
his Fifth Amendment privilege against self-incrimination to infer
that his truthful testimony would have been unfavorable to him.
, 139 N.C. App. at 63-64, 532 S.E.2d at 601.
Defendant also asserted contributory negligence as an
affirmative defense; however, that defense does not appear to be
affected by Defendant's invocation of his Fifth Amendment rights.
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