Wheeless v. Maria Parham Med. Ctr., Inc.

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 his motion for protective order and

granting Maria Parham Medical Center, Inc.’s (“defendant”)

motion to compel. We affirm.

I. Background -2- Plaintiff is an orthopedic surgeon who held active staff

privileges with defendant 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”). The terms of the MSA required, inter 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 -3- similar 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 August 2011, plaintiff filed a complaint against

defendant alleging, inter alia, unfair and deceptive trade

practices, breach of contract, fraud, civil conspiracy, tortious

interference with contractual relations, invasion of privacy,

intentional infliction of emotional distress (“IIED”), and

negligent infliction of emotional distress (“NIED”). In

connection with his claims for breach of contract, civil

conspiracy, tortious interference with contractual relations,

and invasion of privacy, plaintiff alleged that he suffered

emotional distress “as a direct and proximate result” of

defendant’s actions, and sought compensatory and punitive

damages. 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. -4- In response to one of defendant’s interrogatories,

plaintiff indicated that he had been 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 calculated to lead to

discovery of admissible evidence. 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. § 131E-95. Defendant subsequently filed a motion to

compel. 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, -5- Dr. Wagaman, and the PRC. After the in camera review, the trial

court entered an order finding that “plaintiff’s counsel

reaffirmed that plaintiff is seeking, as alleged in 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.” The trial court concluded that plaintiff’s

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.” The trial court then granted defendant’s

motion to compel. Plaintiff appeals.

Plaintiff 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 -6- order to compel discovery and this appeal is interlocutory.

“Generally, there is no right of immediate appeal from

interlocutory orders and judgments.” 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, 588 (2013). “[I]mmediate appeal is available from an

interlocutory order or judgment which affects a substantial

right.” 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, the challenged order affects a

substantial right[.]" Id. at 166, 522 S.E.2d at 581. Because

plaintiff’s appeal concerns a claim of privilege, 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 -7- We 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 the trial court’s order for abuse of

discretion. Midkiff v. Compton, 204 N.C. App. 21, 24, 693

S.E.2d 172, 175 (2010). “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). Our Courts have “also recognized

an implied waiver where a 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). -8- In 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. This Court held that the trial court did

not abuse its discretion in allowing discovery of the

plaintiff’s records of her physical and mental health. Id. at

___, 724 S.E.2d at 556.

Plaintiff cites Iadanza v. Harper, 169 N.C. App. 776, 611

S.E.2d 217 (2005) to support his assertion that his NC PHP

records are irrelevant to his claims for emotional distress

damages. In Iadanza, the plaintiff filed a complaint seeking

compensatory and punitive damages for professional negligence, -9- breach of fiduciary duty, IIED, and NIED. 169 N.C. App. at 777,

611 S.E.2d at 220. 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. Id.

Plaintiff 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 -10- been diagnosed with a mental or emotional disorder, and that

there are no supporting documents. However, plaintiff appears

to misunderstand the nature of defendant’s request, and his

assertions, that his medical records are irrelevant to the

action because he has not been diagnosed with a severe emotional

condition, are misplaced. Defendant does not contend that

plaintiff must prove severe emotional distress. Instead,

defendant’s discovery requests merely 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 and omissions, Plaintiff suffered, and

continues to suffer, significant harm to his reputation,

emotional distress, economic loss and other damages.” In

addition, plaintiff specifically alleged in his claim for civil

conspiracy that defendant’s “actions and conduct in this

conspiracy were designed to bring great harm and damage to

Plaintiff by causing damage: to his reputation; severe economic

and financial loss; severe emotional distress, and loss of

Plaintiff’s medical license.” Defendant sought copies of -11- plaintiff’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. Plaintiff did not assert any type

of privilege in his 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. After hearing counsel’s

arguments regarding reasons 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 -12- at issue by virtue of his claims for emotional distress damages,

his medical records were “plainly relevant to his claims for

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. The record indicates that the trial court

considered evidence and arguments from both parties, and

conducted an in camera review of the documents before entering

its order. Therefore, the trial court did not abuse its

discretion in concluding that plaintiff had waived 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 -13- were not supported by the findings. However, the record

indicates otherwise. We find no evidence that the trial court’s

order was “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).