Cunningham v. Cannon

654 S.E.2d 24, 187 N.C. App. 732, 2007 N.C. App. LEXIS 2529
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2007
DocketCOA06-1532
StatusPublished
Cited by2 cases

This text of 654 S.E.2d 24 (Cunningham v. Cannon) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cunningham v. Cannon, 654 S.E.2d 24, 187 N.C. App. 732, 2007 N.C. App. LEXIS 2529 (N.C. Ct. App. 2007).

Opinions

CALABRIA, Judge.

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. Cunningham was 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 dis[735]*735coverable and portions of Dr. Cook’s application for privileges with Cannon Memorial that were submitted to the North Carolina 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.

I. The Georgia Order

Dr. Cook argues the trial court erred in denying his motion for a protective order with respect to the GBME order because the information pertained to a Physicians Health Program and is privileged under N.C. Gen. Stat. § 90-21.22. We disagree.

Pursuant to N.C. Gen. Stat. § 90-21.22 (2005), “[a]ny confidential patient information and other nonpublic information acquired, created, or used in good faith by the Academy or a society pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case." Id. (emphasis added). Nonpublic information is information that is not accessible to or shared by all members of the community. Sharpe, 137 N.C. App. at 88, 527 S.E.2d at 79. The GBME order provides “this Consent Order, once approved, shall contitute [sic] a public record which may be disseminated as a disciplinary action of the Board.” Therefore, Dr. Cook voluntarily entered into the consent order with the full understanding that it would become public record and the GBME Order is not privileged pursuant to N.C. Gen. Stat. § 90-21.22 and is discoverable because it is a public record.

II. The Application for Privileges

Defendant next argues the trial court erred by denying his motion for protective order with respect to his application for hospital privileges. We disagree.

[736]*736North Carolina General Statutes § 131E-95 provides:

The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public records within the meaning of G.S. 132-1 “ ‘Public records’ defined”, and shall not be subject to discovery or introduction into evidence in any civil action against a hospital, an ambulatory surgical facility licensed under Chapter 13 IE of the General Statutes, or a provider of professional health services which results from matters which are the subject of evaluation and review by the committee.

N.C. Gen. Stat. § 131E-95(b) (2005). Under N.C. Gen. Stat. § 131E-76(5) (2005), a “medical review committee” is defined to include a committee responsible for “medical staff credentialing.”

In Shelton v. Morehead Memorial Hosp., 318 N.C. 76, 87, 347 S.E.2d 824, 831 (1986), our Supreme Court determined the purpose of N.C. Gen. Stat. § 131E-95(b) is to promote medical staff candor and medical review committee objectivity. Shelton, 318 N.C. at 83, 347 S.E.2d at 829; See also Whisenhunt v. Zammit, 86 N.C. App. 425, 427, 358 S.E.2d 114, 116 (1987). The statute accomplishes this purpose by providing a broad privilege that protects “a medical review committee’s (1) proceedings; (2) records and materials it produces; and (3) materials it considers.” Shelton, 318 N.C. at 83, 347 S.E.2d at 829. The statute also accomplishes a balance between this broad privilege and the interest of allowing reasonable discovery by permitting “access to information not generated by the committee itself but merely presented to it....” Id. Therefore, the privilege referenced in the statute does not extend to “information . . . available[] from original sources other than the medical review committee . . . merely because it was 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.” Id., 318 N.C. at 83-84, 347 S.E.2d at 829.

In Shelton, the plaintiffs sought discovery from the defendant hospital’s medical review committee records and information regarding the review proceedings with respect to the defendant doctor. Id., 318 N.C. at 81, 347 S.E.2d at 828. Similarly, the plaintiffs in Whisenhunt sought discovery from a hospital of its “credentialing records” concerning the defendant doctor. Whisenhunt, 86 N.C. App. at 426, 358 S.E.2d at 115.

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Related

Bryson v. HAYWOOD REGIONAL MEDICAL CENTER
694 S.E.2d 416 (Court of Appeals of North Carolina, 2010)
Cunningham v. Cannon
654 S.E.2d 24 (Court of Appeals of North Carolina, 2007)

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Bluebook (online)
654 S.E.2d 24, 187 N.C. App. 732, 2007 N.C. App. LEXIS 2529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-cannon-ncctapp-2007.