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1. Appeal and Error--appealability--discovery order--statutory privilege affects substantial right
Although it is generally true that the appeal from discovery orders are an appeal from an interlocutory order, such orders are immediately appealable if delaying the appeal will irreparably impair a substantial right of the party. When, 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 and is immediately appealable.
2. Appeal and Error--mootness--current controversy still remaining
Defendants' motion to dismiss plaintiff's appeal as moot in a medical malpractice case is denied irrespective of whether plaintiff has agreed to produce all records through the date of 15 September 2005, because: (1) plaintiff did not appeal the 22 September 2005 order since plaintiff's reliance on an oral motion for the trial court to reconsider the 22 September 2005 order under N.C.G.S. § 1A-1, Rule 60(b) is misplaced, and plaintiff is bound by the 22 September 2005 order and must produce all medical records including the substance abuse treatment records up until 15 September 2005; and (2) a current controversy still remains concerning defendants' ability to depose decedent's substance abuse treatment providers and whether plaintiff must disclose records relating to substance abuse treatment between 15 September 2005 and 15 January 2006 since defendant Olchowski has not withdrawn his request to depose providers of substance abuse treatment and neither defendant Miranda nor defendant Atlantic Bariatric have withdrawn any discovery requests.
3. Appeal and Error--motion to strike portions of motion to dismiss--challenged information related to procedural context
Plaintiff's motion to strike portions of defendants' motion to dismiss in a medical malpractice case is summarily denied because the challenged information contained in defendants' motion to dismiss is related to the procedural context of the case.
4. Medical Malpractice--disclosure of substance abuse treatment records--providers
available for deposition_-waiver of patient-physician privilege by placing medical
condition at issue--authorization by state and federal law
The trial court did not err in a medical malpractice case by ordering disclosure of decedent's substance abuse treatment records and by ordering plaintiff to make decedent's substance abuse treatment providers available for deposition, because: (1) there are explicit statutory exceptions that authorize such disclosure as well as an implicit waiver by plaintiff of the protections generally afforded to confidential communications between a patient and the provider of substance abuse treatment; (2) a patient impliedly waives the patient-physician privilege by opening the door to medical history by bringing an action, counterclaim, or defense that places his medical condition at issue, and plaintiff impliedly waived the privilege under N.C.G.S. § 8-53et seq. when he placed decedent's mental health and history of substance abuse at issue by bringing a claim for emotional distress; and (4) disclosure of the information under the trial court's order was also authorized by state and federal law under the exception codified in N.C.G.S. § 122C-54 and 42 C.F.R. § 2-63(a)(3); and (5) 42 C.F.R. § 2-63(a)(3) was satisfied since the records and communications related to decedent's substance abuse treatment are causally related and thus relevant to plaintiff's claim for damages, the information at issue could not be discovered other than by court order, and there was no potential injury to the patient or patient-physician relationship due to such disclosure when decedent had died.
5. Evidence--refusal to conduct in-camera review--substance abuse records
The trial court did not abuse its discretion in a medical malpractice case by refusing to conduct an in camera review of all of decedent's substance abuse treatment records because: (1) contrary to plaintiff's contention, N.C.G.S. § 8-53 was not relevant since plaintiff waived the patient-physician privilege related to decedent's substance abuse treatment by placing her mental and emotional health at issue; and (2) the trial court complied with 42 C.F.R. § 2.64(e)(1) since the records ordered to be disclosed were reasonably calculated to lead to the discovery of evidence relevant to the issues of emotional distress and damages and such record would only be disclosed under seal.
Jennifer L. Umbaugh; and Melissa A. Pollock for plaintiff
Robert S. Shields, Jr., and Jonathan T. Mlinarcik, for Steven E. Olchowski, M.D., defendant appellee.
Crawford & Crawford, LLP, by Robert O. Crawford III, and Renee B. Crawford, for Sina Surgical Associates, P.A., defendant appellee.
On 13 November 2002, Jessica Spangler (decedent) filed a medical malpractice action against Steven E. Olchowski, M.D. (Olchowski), Conrad J.R. Miranda, M.D. (Miranda), Sina Surgical Associates, P.A. (Sina), and Atlantic Bariatric Center, Inc. (Atlantic Bariatric) (collectively defendants). On 15 January2006, decedent died of unrelated causes. Her father, Gary W. Spangler, as executor of her estate, was substituted as the party- plaintiff (plaintiff) on 10 February 2003.
The action concerns a gastric bypass surgery performed on 3 July 2001 by Olchowski, during which plaintiff alleges that Olchowski performed a modified Rutledge procedure with an afferent and efferent loop to a gastric pouch (loop gastric bypass) instead of the laparoscopic Roux-en-y gastric bypass procedure (RNY bypass) to which decedent had consented. The complaint alleges that after the surgery, Olchowski attempted to conceal the true nature of the procedure that he performed; that due to complications related to the 3 July 2001 surgery, decedent was forced to undergo a second procedure to revise the original surgery; and that as a result of the actions of Olchowski,
[decedent] suffered unnecessary conscious physical pain and emotional distress; has been forced to undergo multiple painful and therapeutic and diagnostic tests and procedures and prolonged hospitalizations; was forced to undergo a major abdominal surgery; has incurred significant reasonable and necessary medical and other related expenses; had to withdraw from her college studies resulting in a delay in completing her education and financial loss; has suffered a loss of enjoyment of life[.]
During discovery, Sina filed motions to compel discovery of all medical records for the ten-year period preceding 3 July 2001, the date of decedent's surgery, and medical records up to the date of trial. During this period of time, decedent had been undergoing substance abuse treatment. On 22 September 2005, the trial judgegranted Sina's motion and ordered plaintiff to produce to defendants, under seal, complete medical records from all known medical providers in their entirety from 3 July 1991 through 15 September 2005. Plaintiff did not appeal this order.
Thereafter, on 8 May 2006, plaintiff filed a motion for a protective order, seeking: (1) to limit the time frame for production of medical records to 5 July 1991 until 15 September 2005; and (2) to protect from disclosure all medical records and health care provider testimony relating to decedent's substance abuse treatment.
A hearing on the motion was held on 25 August 2006. At this hearing, plaintiff made an oral motion, pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005), for the trial judge to reconsider the 22 September 2005 order. On 29 September 2006, the trial judge ordered plaintiff to (1) produce complete, updated medical records from 15 September 2005 until 6 January 2006, the date of decedent's death; and (2) make sixteen witnesses available for deposition, including decedent's substance abuse treatment providers. On 13 October 2006, the trial judge entered an order denying plaintiff's request for the court to conduct an in camera review of decedent's medical records, denying plaintiff's motion to reconsider the 22 September 2005 order, and denying plaintiff's motion for a protective order to limit the scope of discovery, finding that:
A. Jessica Spangler's Estate is seeking damages for pain and suffering and emotional distress.
B. Mental suffering often results in substance abuse and records relating to substance abuse treatment may be relevant to mental pain.
C. In that the Plaintiff has put before the Court a claim for emotional distress, all medical records which the Plaintiff asserts are protected from disclosure under 42 CFR §2.1 [sic] et seq. and N.C.G.S. § 122C-52, et seq. are discoverable and shall be produced.
The 13 October 2006 order provides that all records tendered by plaintiff are to remain under seal pursuant to the 25 August 2006 order.
On appeal, plaintiff contends that the trial court erred by (1) ordering disclosure of decedent's substance abuse treatment records; (2) ordering plaintiff to make decedent's substance abuse treatment providers available for deposition; and (3) refusing to conduct an in camera review of all of decedent's substance abuse treatment records. Defendants filed a motion to dismiss the appeal. Plaintiff filed a motion to strike portions of defendants' motion to dismiss.
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