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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1475 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 CLIFFORD ROBERTS WHEELESS, III, M.D., Plaintiff v. Vance County No. 11 CVS 859 MARIA PARHAM MEDICAL CENTER, INC., Defendant Appeal by plaintiff from order entered 1 July 2013 by Judge James E. Hardin, Jr. in Vance County Superior Court. Heard in the Court of Appeals 7 May 2014. The Law Office of Colon & Associates, PLLC, by Arlene L. Velasquez-Colon; and Congdon Law, by Jeannette Griffith Congdon, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, LLP, by James M. Powell and Theresa M. Sprain, for defendant-appellee. CALABRIA, Judge. Clifford Roberts Wheeless, III, M.D. ( plaintiff ) appeals from an order denying granting Maria Parham motion to compel. his motion Medical for Center, We affirm. I. Background protective Inc. s order and ( defendant ) -2Plaintiff is an orthopedic surgeon who held active staff privileges with defendant until July 2006. Medical Executive Committee ( MEC ) In 2005, defendant s 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 review ). Plaintiff physician requested a policy fair (the 2006 hearing, which peer was scheduled to consider the allegations of plaintiff s disruptive behavior. Prior to the date of the fair hearing, the parties negotiated and entered ( MSA ). The terms of into the a Mediated MSA Settlement required, inter Agreement alia, that plaintiff deliver a request for the MEC to change his staff privileges from Active Staff to Consulting Staff, and that the MEC terminate without further action any and all pending or contemplated disciplinary actions against plaintiff. In a letter dated August 2006, plaintiff alleged that defendant failed to honor his consulting privileges pursuant to the MSA, and requested that defendant take whatever corrective steps appear to be necessary to comply with the MSA. Plaintiff again notified defendant of an alleged failure to comply with the MSA in January 2007, alleging three specific instances -3similar to those described in the August 2006 letter. In February 2009, plaintiff was contacted by the North Carolina Medical Board ( NCMB ) regarding an anonymous complaint by W. Blower that had been submitted to the NCMB alleging inappropriate or disruptive behavior on plaintiff s part. The W. Blower allegations included references to incidents that were the subject of the 2005 and 2006 peer reviews and fair hearing. On 25 defendant August 2011, alleging, plaintiff inter alia, filed unfair a complaint and against deceptive trade practices, breach of contract, fraud, civil conspiracy, tortious interference with contractual intentional negligent infliction infliction connection with conspiracy, and of defendant s emotional of privacy, as a ( IIED ), distress breach with plaintiff a distress of contract, contractual alleged that and and sought compensatory hearing, the trial In civil relations, he proximate court and ( NIED ). direct actions, After for interference distress emotional emotional claims tortious invasion damages. his of relations, invasion of privacy, suffered result of and punitive granted summary judgment in favor of defendant regarding some of plaintiff s claims. The remaining claims progressed to discovery. -4In response plaintiff to indicated one that of he defendant s had been interrogatories, treated by the North Carolina Physician Help Program ( NC PHP ), and that specifics may be obtained from NC PHP program. Plaintiff did not assert any privilege but objected on the grounds that the interrogatory was overly broad and not reasonably discovery of admissible evidence. calculated to lead to On 30 April 2012, plaintiff voluntarily dismissed, without prejudice, his claims for IIED and NIED. On 2 May 2012, plaintiff testified at a deposition that as part of his involvement with NC PHP, he participated in a program at the Physicians Renewal Center in Lawrence, Kansas ( PRC ), and had regular visits with psychologist George Wagaman, Ph.D. ( Dr. Wagaman ) in Chapel Hill, North Carolina. After defendant sent plaintiff a formal request to execute releases for plaintiff s records from NC PHP, plaintiff claimed that his records were privileged because the records were requested for use by a medical review board pursuant to N.C. Gen. Stat. ยง 131E-95. compel. Defendant subsequently filed a motion to Plaintiff filed a motion for a protective order. After a hearing on both motions, the trial court entered an order for in camera review of plaintiff s records from NC PHP, -5Dr. Wagaman, and the PRC. court entered reaffirmed an that After the in camera review, the trial order finding plaintiff is that plaintiff s as seeking, counsel in alleged his complaint, emotional distress damages in conjunction with the claims that remain pending in the lawsuit. As a result, Plaintiff has placed his mental health and history at issue in this lawsuit. medical emotional The records trial were distress court plainly damages, concluded relevant that plaintiff s his claims for Plaintiff and to has waived any privilege that might otherwise shield his medical records from being discovered. motion to compel. Plaintiff The trial court then granted defendant s Plaintiff appeals. argues that the trial court (1) abused its discretion in concluding that plaintiff waived his privilege, and (2) erred in concluding that the privilege afforded the NC PHP does not extend to other providers. Defendant filed a motion to dismiss plaintiff s appeal. II. Interlocutory Appeal / Motion to Dismiss As an initial matter, defendant contends that plaintiff s appeal should be dismissed because there is substantial evidence to support the trial court s finding that plaintiff impliedly waived his privilege. We note that this appeal concerns an -6order to compel discovery and this appeal is interlocutory. Generally, there is no right of interlocutory orders and judgments. immediate 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 by 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 appeal judgment 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[.]" plaintiff s appeal the challenged order affects Id. at 166, 522 S.E.2d at 581. concerns a claim of privilege, a Because the trial court s order finding that plaintiff had waived his privilege affects a substantial right. Therefore, we deny defendant s motion to dismiss and address plaintiff s appeal. III. Waiver -7We first address whether the trial court abused its discretion in concluding that plaintiff waived his privilege. Plaintiff specifically contends that because he dismissed his claims for IIED and NIED, his NC PHP records are irrelevant to the action. We disagree. When reviewing a trial court s ruling on a discovery issue, this Court reviews discretion. the Midkiff trial v. S.E.2d 172, 175 (2010). court s Compton, 204 order N.C. for App. abuse of 24, 693 21, Abuse of discretion results where the court s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. Id. (citation omitted). The facts and circumstances of a particular case determine whether a patient s conduct constitutes an implied waiver, and a patient impliedly waives his privilege when he does not object to requested disclosures of the privileged information. Mosteller v. Stiltner, ___ N.C. App. ___, ___, 727 S.E.2d 601, 603 (2012) (citation omitted). an implied waiver where a Our Courts have also recognized patient by bringing an action, counterclaim, or defense directly placed her medical condition at issue. Mims v. Wright, 157 N.C. App. 339, 342-43, 578 S.E.2d 606, 609 (2003) (citations omitted). -8In Young v. Kimberly-Clark Corp., ___ N.C. App. ___, 724 S.E.2d 552 (2012), the plaintiff filed a complaint alleging, inter alia, compensatory damages for emotional distress and/or pain and suffering. ___ N.C. App. at ___, 724 S.E.2d at 554. The defendant filed a motion to compel discovery on several issues, including the plaintiff s physical and mental health. Id. The trial court specifically found that the plaintiff had placed her mental and emotional health at issue both by asserting a claim for infliction of emotional distress and by seeking emotional distress damages in other causes of action. Id. at ___, 724 S.E.2d at 555. The trial court then allowed the defendant s motion to compel discovery regarding the plaintiff s physical and mental health for the five years prior to service of the requests. Id. not discretion abuse its This Court held that the trial court did in allowing discovery plaintiff s records of her physical and mental health. of the Id. at ___, 724 S.E.2d at 556. Plaintiff cites Iadanza v. Harper, 169 N.C. App. 776, 611 S.E.2d 217 records damages. (2005) are to irrelevant support to his his assertion claims for that his emotional NC PHP distress In Iadanza, the plaintiff filed a complaint seeking compensatory and punitive damages for professional negligence, -9breach of fiduciary duty, IIED, and NIED. 611 S.E.2d at 220. 169 N.C. App. at 777, The defendant moved for partial summary judgment on the issue of actual damages, and the trial court granted the defendant s motion. Id. at 778, 611 S.E.2d at 220. On appeal, the defendant argued that the plaintiff needed proof of severe emotional distress to prevail in her claim for pain and suffering damages. Id. at 780, 611 at 221. This Court rejected the defendant s argument, holding that a plaintiff need not prove the severe emotional distress as required by claims for IIED or NIED in order to prove pain and suffering damages. Id. (citation omitted). However, this Court also noted that a plaintiff must prove his cause of action before being entitled to all damages, including pain and suffering, that derive from the cause of action. Plaintiff Id. concedes that he has the burden of proof of establishing emotional distress in pain and suffering damages. Plaintiff is also correct that damages for pain and suffering are recoverable without proof of severe emotional distress as required for claims of IIED and NIED. Iadanza, 169 N.C. App. at 780, 611 S.E.2d at 221-22. Plaintiff contends that his three week participation in the program at PRC and his regular visits with Dr. Wagaman did not constitute treatment, that he has never -10been diagnosed with a mental or emotional disorder, and that there are no supporting documents. to misunderstand assertions, that the nature of his medical However, plaintiff appears defendant s records and his irrelevant are request, to the action because he has not been diagnosed with a severe emotional condition, are plaintiff must defendant s misplaced. prove Defendant severe discovery does emotional requests not contend distress. merely that Instead, sought proof of plaintiff s alleged damages as related to the alleged emotional distress. In the instant case, plaintiff specifically claimed damages related to emotional distress, alleging as part of several causes of action that [a]s a direct and proximate result of Defendants actions continues to emotional distress, and suffer, omissions, significant economic loss Plaintiff harm to and suffered, his other and reputation, damages. In addition, plaintiff specifically alleged in his claim for civil conspiracy that conspiracy were defendant s designed to actions bring and great conduct harm and in this damage to Plaintiff by causing damage: to his reputation; severe economic and financial Plaintiff s loss; medical severe emotional license. distress, Defendant and sought loss of copies of -11plaintiff s records from NC PHP, PRC, and from Dr. Wagaman, a professional psychologist. Plaintiff did not dispute that he had participated in the PRC program or that he had visited Dr. Wagaman on several occasions. of privilege in his Plaintiff did not assert any type answers to discovery until defendant requested releases for these records. At the hearing, the trial court reviewed plaintiff s complaint and voluntary dismissal of his claims for IIED and NIED, plaintiff s answers to the pertinent interrogatories, and excerpts from plaintiff s deposition in which he answered questions regarding the names of his providers and the lengths of his participation in the programs. arguments regarding reasons After hearing counsel s plaintiff s records were not discoverable, the trial court also ordered an in camera review of the records. Subsequent to the in camera review, the trial court entered an order finding that plaintiff was indeed seeking emotional distress damages in conjunction with his remaining claims, and that as a result plaintiff had placed his mental health and history at issue. The trial court also found that plaintiff had failed to assert any privilege in his responses to defendant s interrogatories. The trial court then concluded that because plaintiff had placed his mental health and history -12at issue by virtue of his claims for emotional distress damages, his medical records were plainly relevant to his claims for emotional distress damages, and Plaintiff has waived any privilege that might otherwise shield his medical records from being discovered, pursuant to both Young and Mims. The trial court also noted plaintiff s failure to assert any privilege, concluding that any claim of privilege had been waived on that ground, as well. considered evidence The record indicates that the trial court and arguments from both parties, and conducted an in camera review of the documents before entering its order. discretion Therefore, in the concluding trial that court did plaintiff not had abuse waived its his privilege. Plaintiff also argues that the trial court erred in concluding that the statutory privilege afforded to the NC PHP does not extend to other providers. However, because the trial court did not abuse its discretion in concluding that plaintiff had waived any claim of privilege, we need not address this argument. IV. Conclusion Plaintiff asserts that the trial court s findings were unsupported by the evidence, and that the court s conclusions -13were not supported indicates otherwise. order was by the findings. However, the record We find no evidence that the trial court s manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision. Midkiff, 204 N.C. App. at 24, 693 S.E.2d at 175. Therefore, we affirm the order of the trial court. Affirmed. Judges BRYANT and GEER concur. Report per Rule 30(e).
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