Wheeless v. Maria Parham Med. Ctr., Inc

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-1063 NORTH CAROLINA COURT OF APPEALS Filed: 1 July 2014 CLIFFORD ROBERTS WHEELESS, III, M.D., Plaintiff v. Vance County No. 11 CVS 859 MARIA PARHAM MEDICAL CENTER, INC., Defendant Appeal by defendant from order entered 4 April 2013 by Judge Elaine M. Bushfan in Vance County Superior Court. Heard in the Court of Appeals 20 February 2014. The Law Office of Colon & Associates, PLLC, by Arlene L. Velasquez-Colon; and Jeannette Griffith Congdon, for plaintiff-appellee. Womble Carlyle Sandridge & Rice, LLP, by James M. Powell and Theresa M. Sprain, for defendant-appellant. CALABRIA, Judge. Maria Parham Medical Center, Inc. ( defendant ) appeals from an order compelling defendant to supplement its responses to discovery. We reverse. Clifford Roberts Wheeless, III, M.D. ( plaintiff ) is an orthopedic surgeon who held active staff privileges with -2defendant until July 2006. In 2005, defendant s Medical Executive Committee ( MEC ) conducted a peer review proceeding regarding plaintiff s clinical skills (the 2005 peer review ). In 2006, defendant initiated a separate peer review proceeding regarding allegations of plaintiff s violations of defendant s disruptive physician policy (the 2006 peer review ). Plaintiff requested a fair hearing, which was scheduled to consider the allegations of plaintiff s disruptive behavior. Prior to the date of the fair hearing, the parties negotiated and entered into a Mediated Settlement Agreement ( MSA ). MSA required, change his The terms of the inter alia, that plaintiff request the MEC to staff privileges from Active Staff to Consulting Staff, and that the MEC terminate without further action any and all pending or contemplated disciplinary dated 2006, actions against plaintiff. In a letter August plaintiff alleged that defendant failed to honor his consulting privileges pursuant to the MSA by refusing to call him in for consults when he was requested by patients. defendant take Plaintiff requested in the letter that whatever corrective steps appear to be necessary to comply with the MSA. Plaintiff again notified defendant comply of an alleged failure to with the MSA in -3January 2007, alleging three specific instances similar to those described in the August plaintiff was contacted 2006 by the letter. North In February Carolina 2009, Medical Board ( NCMB ) regarding an anonymous complaint submitted to the NCMB by W. Blower alleging inappropriate or disruptive behavior on plaintiff s part. The W. Blower allegations included references to incidents that were the subjects of the 2005 and 2006 peer reviews. On 25 defendant August 2011, alleging, practices, breach intentional and of plaintiff inter alia, contract, negligent filed unfair fraud, infliction a complaint and civil of against deceptive trade conspiracy, emotional and distress. After a hearing, the trial court granted summary judgment in favor of defendant regarding some of plaintiff s claims. The remaining claims progressed to discovery. On 27 March 2012, plaintiff served defendant with a set of formal discovery requests including interrogatories, requests for production of documents, and requests for admission (the First Discovery Request ). Defendant responded to the First Discovery Request on 31 May 2012, objecting to requests for peer review related materials on the grounds that the information was privileged pursuant to N.C. Gen. Stat. § 131E-95. Plaintiff -4subsequently filed a motion to compel. Robert H. Hobgood ( Judge Hobgood ) After a hearing, Judge entered an order on 17 December 2012 upholding defendant s assertions of the statutory privilege ( the Hobgood Order ). On 4 December 2012, plaintiff filed a motion to compel regarding defendant s assertion of the same statutory privilege in response to questions about depositions of three witnesses. the 2006 peer review in At a hearing, plaintiff argued before Judge James E. Hardin ( Judge Hardin ) that the exception for malice in N.C. Gen. Stat. § 131E-95(a) (2013) should also apply to the privilege arising under N.C. Gen. Stat. § 131E95(b) (2013). presented Judge Hardin determined that plaintiff had not evidence of malice sufficient to show that the privilege of N.C. Gen. Stat. § 131E-95 was waived or eliminated. On 5 February 2013, Judge Hardin entered an order upholding defendant s assertions details of the Hardin Order 2006 of peer specifically privilege review regarding ( the found the Hardin the specific Order ). Hobgood Order The made determinations regarding the statutory privilege with regard to interrogatories, requests for production, and requests for admission. On 27 October 2012, plaintiff served a second set of -5requests for admission ( Second RFA ). Defendant responded to the Second RFA on 27 December 2012, again objecting to requests regarding the 2006 peer review and defendant s peer review process on the grounds that such information was not subject to discovery pursuant to N.C. Gen. Stat. § 131E-95(b). Plaintiff subsequently filed a motion and supplemental motion to determine the sufficiency of defendant s answers to the Second RFA. Plaintiff specifically alleged in his supplemental motion that there was evidence showing defendant s privilege. malice sufficient to eliminate After a hearing, Judge Elaine M. Bushfan ( Judge Bushfan ) entered an order on 4 April 2013 concluding that plaintiff had demonstrated an adequate showing of malice by defendant to compelling eliminate defendant information ( the defendant s to Bushfan disclose statutory the Order ). privilege previously Defendant and privileged appeals the Bushfan Order. As an initial matter, we note that this appeal concerns an order to compel Generally, discovery there is no and this right of interlocutory orders and judgments. appeal is immediate interlocutory. appeal from Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, "orders compelling discovery of materials purportedly protected -6by the medical review privilege or work product doctrine are immediately reviewable on appeal despite their interlocutory nature." Hammond v. Saini, ___ N.C. App. ___, ___, 748 S.E.2d 585, (2013). 588 interlocutory right. [I]mmediate order or judgment appeal is available which affects a from an substantial Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quotation marks omitted). "Accordingly, 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, substantial right[.]" the challenged order affects a Id. at 166, 522 S.E.2d at 581. In the instant case, defendant claims that the materials subject to the order on appeal are privileged pursuant to N.C. Gen. Stat. § 131E-95. Because the trial court s order compels discovery of materials that defendant claims are subject to the statutory medical review privilege, the trial court s order affects a substantial right and thus is immediately appealable. Id.; Hammond, __ N.C. App. at ___, 748 S.E.2d at 588. We next address whether there was a showing of changed circumstances sufficient to support the trial court s decision in the Bushfan Order on the issue of privilege. -7In North Carolina, no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action. Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). A narrow exception to this rule exists where there has been a substantial change in circumstances. First Fin. Ins. Co. v. Commercial Coverage, Inc., 154 N.C. App. 504, 507, 572 S.E.2d 259, 262 (2002). if since the A substantial change in circumstances exists entry of the prior order, there has been an intervention of new facts which bear upon the propriety of the previous order. Id. (citations and quotation marks omitted). However, in the absence of adequate findings specifying the nature of the change of circumstances upon which the court relies, it is without authority to overrule, either expressly or implicitly, the first judge s prior determination as reflected in its order. Crook v. KRC Mgmt. Corp., 206 N.C. App. 179, 190, 697 S.E.2d 449, 456-57 (2010) (citation and quotation marks omitted) (emphasis in original). [W]here the trial court fails to find that there has been a material change in circumstances, it has no authority to modify the order of another judge. Id., -8697 S.E.2d at 457. In the findings instant regarding case, the the Bushfan patient Order affidavits made that several plaintiff presented both to Judge Hardin and to Judge Bushfan. It also listed findings regarding the statutory privilege and the malice exception as set forth in N.C. Gen. Stat. § 131E-95. However, while the Bushfan Order found that the Hobgood Order stated in pertinent part that matters occurring prior to August 25, 2008 may come in reference as either evidence of the statutory privilege. make any that other prior orders reasons, on the it failed subject of to the In addition, the Bushfan Order failed to findings circumstances for regarding would allow a substantial the change trial to court in reverse defendant s claim of privilege as upheld in the Hardin Order. The Bushfan Order did not set forth adequate findings specifying the nature of the change in circumstances upon which the court relied. Therefore, the court was without authority to overrule the prior determination of defendant s statutory privilege. at 190, 697 S.E.2d at 456-57. Id. Because we reverse the trial court s order based on the lack of findings regarding changed circumstances, it is unnecessary to consider the remaining arguments regarding the statutory privilege. parties -9Reversed. Judges McGEE and STROUD concur. Report per Rule 30(e).

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