Crist v. Moffatt

374 S.E.2d 487 (1988)

92 N.C. App. 520

Hazel Marie CRIST v. Robert C. MOFFATT, M.D.

No. 8828SC466.

Court of Appeals of North Carolina.

December 30, 1988.

*488 Elmore & Powell, P.A. by Shirley H. Brown, Asheville, for plaintiff-appellee.

Roberts Stevens & Cogburn, P.A. by Isaac N. Northrup, Jr., Asheville, for defendant-appellant.

WELLS, Judge.

Defendant seeks to have this admittedly interlocutory order reversed in this appeal. We decline to do so and dismiss the appeal.

N.C.Gen.Stat. § 1-277(a) provides:

An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference,... which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.

See also N.C.Gen.Stat. § 7A-27(d).

The right defendant asserts Judge Hyatt's order denied him is to privately interview plaintiff's treating physicians, defendant contending that these physicians are "fact" witnesses with knowledge of the events and circumstances underlying plaintiff's claims for relief. By this disingenuous argument, defendant asserts that he could unilaterally assume that plaintiff had waived the physician/patient privilege afforded her under N.C.Gen.Stat. § 8-53, by disclosing the fact that she was treated, by furnishing, pursuant to a discovery request, her medical records resulting from treatment by her physicians, and by participating in the taking of her deposition. We reject this argument.

We do not perceive that Judge Hyatt's order deprived defendant of any right, substantial or otherwise.

Appeal dismissed.

ARNOLD and COZORT, JJ., concur.