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1. Appeal and Error--appealability--interlocutory order--discovery order--privilege-- substantial right
Although defendant doctor appeals from an interlocutory discovery order of the trial court denying in part his motion for a protective order and granting in part plaintiff executor's motion to compel, defendant has a right to an immediate appeal because: (1) appeals from discovery orders have been held to affect a substantial right when a privilege under N.C.G.S. § 90-21.22 has been asserted; and (2) defendant asserted that the matters to be disclosed were privileged under N.C.G.S. § 90-21.22.
2. Discovery; Medical Malpractice--Physicians Health Program_-substance abuse--
motion for protective order--voluntary consent order--public record--disciplinary
The trial court did not abuse its discretion in a medical negligence case by denying in part defendant doctor's motion for a protective order with respect to the Georgia Board of Medical Examiners (GBME) order regarding defendant's alleged substance abuse even though defendant argued it contained information pertaining to a Physicians Health Program and was privileged under N.C.G.S. § 90-21.22, because: (1) although N.C.G.S. § 90-21.22 provides that any confidential patient information and other nonpublic information acquired, created, or used in good faith by the Academy or a society under this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case, the GBME order provided that the consent order, once approved, shall constitute a public record which may be disseminated as a disciplinary action of the Board; and (2) defendant voluntarily entered into the consent order with the full understanding that it would become public record, and the GBME order was not privileged under N.C.G.S. § 90-21.22 and was discoverable since it was a public record.
3. Discovery; Medical Malpractice--motion for protective order_-application for
hospital privileges--limitations on ability to practice medicine
The trial court did not abuse its discretion in a medical negligence case by denying in part defendant doctor's motion for a protective order with respect to his application for hospital privileges showing defendant's limitations on his ability to practice medicine, because: (1) the privilege referenced in N.C.G.S. § 131E-95 does not extend to information available from original sources other than the medical review committee merely based on it being 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; and (2) the information sought by plaintiff was generated by defendant, not the Cannon Credentialing Committee, and thus the information was discoverable.
4. Discovery; Medical Malpractice--motion to compel--doctor's substance abuse and
limitations on ability to practice medicine
The trial court did not abuse its discretion in a medical negligence case by granting in part plaintiff executor's motion to compel discovery regarding defendant doctor's substance abuse and limitations on his ability to practice medicine, because: (1) N.C.G.S. § 1A-1, Rule 26 provides that parties 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; and (2) the Court of Appeals determined that both items sought by plaintiff were not privileged, and the information contained in a Georgia order and the application for hospital privileges provided information related to defendant's history of drug and alcohol abuse.
Judge JACKSON concurring in a separate opinion.
Pulley, Watson, King & Lischer, by Richard N. Watson, for
Carruthers & Roth, P.A., by Richard L. Vanore, Norman F. Klick, Jr. and Robert N. Young, for defendant-appellant.
Defendant David Cleo Cook, M.D. (Dr. Cook) appeals from an order of the trial court denying in part his motion for a protective order and granting in part George G. Cunningham, Executor of the Estate of Christine B. Cunningham's (plaintiff) motion to compel. We affirm.
On 31 May 2004, Christine B. Cunningham (Mrs. Cunningham), plaintiff's wife and decedent, attempted suicide. Mrs. Cunningham was involuntarily committed to the Watauga Medical Center on 1 June 2004 where she received treatment. Mrs. Cunningham was transferred to the Charles A. Cannon, Jr. Memorial Hospital, Incorporated (Cannon Memorial) on 1 June 2004. That same day, Mrs. Cunninghamwas placed on one-on-one constant observation and was placed under suicide precautions. On 3 June 2004, at 12:18 p.m., Dr. Cook changed Mrs. Cunningham's observation status from one-on-one to close. At 3:30 p.m., a nurse found Mrs. Cunningham in the bathroom hanging by her neck and reported that Mrs. Cunningham was unresponsive. On 4 June 2004, the following day, Mrs. Cunningham died as a result of the injuries sustained from the previous day's incident.
On 3 October 2005, plaintiff filed an action against Dr. Cook, Cannon Memorial and Diamond Healthcare Corporation (Diamond) alleging medical negligence of each party. On 1 February 2006, Dr. Cook filed a Motion for Protective Order to prohibit plaintiff from seeking discovery of privileged and confidential information. On 24 May 2006, Wilkes County Superior Court Judge Anderson D. Cromer (Judge Cromer) entered an order granting Dr. Cook's motion as to certain interrogatories regarding information otherwise produced during the course of peer review activities or while participating in any agreements made pursuant to N.C. Gen. Stat. § 90-21.22 (2005). Judge Cromer denied Dr. Cook's motion for a protective order in part and granted plaintiff's motion to compel as to Dr. Cook's alleged substance abuse and limitations on his ability to practice medicine. Judge Cromer further ordered that a prior order entered by the Georgia Board of Medical Examiners (GBME order) was discoverable and portions of Dr. Cook's application for privileges with Cannon Memorial that were submitted to the NorthCarolina Department of Health and Human Services (DHHS) were discoverable. Dr. Cook appeals.
 Initially we note that although Dr. Cook's appeal is interlocutory, appeals from discovery orders have been held to affect a substantial right when a privilege under N.C. Gen. Stat. § 90-21.22 has been asserted. See Armstrong v. Barnes, 171 N.C. App. 287, 614 S.E.2d 371, review denied, 360 N.C. 60, 621 S.E.2d 173 (2005) (allowing interlocutory appeal of discovery order based on privileges asserted under N.C. Gen. Stat. § 90-21.22); Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999) (holding interlocutory discovery orders affect a substantial right when a statutory privilege directly related to the matter to be disclosed is asserted). Because Dr. Cook asserts that the matters to be disclosed are privileged under N.C. Gen. Stat. § 90-21.22, a substantial right is affected.
JACKSON, Judge, concurring.
Although I concur with the majority opinion, I write separately to express my opinion that on the issue of Dr. Cook's credentialing application, we need go no further than Chapter 131E to reach our conclusion.
Although North Carolina General Statutes, section 131E-95(b) prohibits discovery of medical review committee meetings, the records and materials it produces, and the materials it considers,
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. Documents otherwise available as public records within the meaning of G.S. 132-1 do not lose their status as public records merely because they were presented or considered during proceedings of the committee.
N.C. Gen. Stat. § 131E-95(b) (2005) (emphasis added).
Here, plaintiff sought information pertaining to whether Dr. Cook had ever (1) had his license to practice medicine revoked, suspended, limited, or denied, either voluntarily or involuntarily; (2) had his hospital privileges revoked, suspended, or in any way limited; (3) had his privileges to prescribe medications, including narcotics, revoked, suspended, or limited, either voluntarily or involuntarily; or (4) been subject to an investigation or disciplinary action. This information was otherwise available from several sources other than his application for privileges at Cannon Memorial Hospital. As the trial court noted, the information was known to Dr. Cook, himself. In addition, pursuant to the consent order entered into between Dr. Cook and the Georgia Board of Medical Examiners, it was a matter of public record that Dr. Cook was the subject of a disciplinary action limiting his ability to practice medicine and prescribe medications in Georgia. Further, separate and apart from his application was a letter in the public files of D.H.H.S. in which Dr. Cook indicated that he had been the subject of disciplinary proceedings, had his ability to prescribe medications limited, and had his license to practice limited.
Because the information sought was otherwise available, it was discoverable, rather than the fact that, as the majority suggests, it was generated by defendant.
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