An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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 request 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 by refusing to call him in for consults when he was
requested by patients. Plaintiff requested in the letter 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 -3- January 2007, alleging three specific instances 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 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 August 2011, plaintiff filed a complaint against
defendant alleging, inter alia, unfair and deceptive trade
practices, breach of contract, fraud, civil conspiracy, and
intentional and negligent infliction of emotional 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 -4- subsequently filed a motion to compel. After a hearing, Judge
Robert H. Hobgood (“Judge Hobgood”) 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 the 2006 peer review in
depositions of three witnesses. 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. § 131E-
95(b) (2013). Judge Hardin determined that plaintiff had not
presented 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 of privilege regarding the specific
details of the 2006 peer review (“the Hardin Order”). The
Hardin Order specifically found the Hobgood Order 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 -5- requests 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 malice sufficient to eliminate
defendant’s privilege. 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 eliminate defendant’s statutory privilege and
compelling defendant to disclose the previously privileged
information (“the Bushfan Order”). Defendant appeals the
Bushfan Order.
As an initial matter, we note that this appeal concerns an
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 -6- 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.
In the instant case, defendant claims that the materials
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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 -2- 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 request 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 by refusing to call him in for consults when he was
requested by patients. Plaintiff requested in the letter 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 -3- January 2007, alleging three specific instances 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 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 August 2011, plaintiff filed a complaint against
defendant alleging, inter alia, unfair and deceptive trade
practices, breach of contract, fraud, civil conspiracy, and
intentional and negligent infliction of emotional 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 -4- subsequently filed a motion to compel. After a hearing, Judge
Robert H. Hobgood (“Judge Hobgood”) 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 the 2006 peer review in
depositions of three witnesses. 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. § 131E-
95(b) (2013). Judge Hardin determined that plaintiff had not
presented 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 of privilege regarding the specific
details of the 2006 peer review (“the Hardin Order”). The
Hardin Order specifically found the Hobgood Order 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 -5- requests 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 malice sufficient to eliminate
defendant’s privilege. 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 eliminate defendant’s statutory privilege and
compelling defendant to disclose the previously privileged
information (“the Bushfan Order”). Defendant appeals the
Bushfan Order.
As an initial matter, we note that this appeal concerns an
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 -6- 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.
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. -7- In 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). “A substantial change in circumstances exists
if since the 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., -8- 697 S.E.2d at 457.
In the instant case, the Bushfan Order made several
findings regarding the patient affidavits that 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 as evidence for other reasons,’” it failed to
reference either of the prior orders on the subject of the
statutory privilege. In addition, the Bushfan Order failed to
make any findings regarding a substantial change in
circumstances that would allow the trial court to 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. Id.
at 190, 697 S.E.2d at 456-57. Because we reverse the trial
court’s order based on the lack of findings regarding changed
circumstances, it is unnecessary to consider the parties’
remaining arguments regarding the statutory privilege. -9- Reversed.
Judges McGEE and STROUD concur.
Report per Rule 30(e).