{
  "id": 8520782,
  "name": "MICHAEL WAYNE ADAMS v. JOSEPH SCOTT LOVETTE",
  "name_abbreviation": "Adams v. Lovette",
  "decision_date": "1992-01-07",
  "docket_number": "No. 9112SC187",
  "first_page": "23",
  "last_page": "32",
  "citations": [
    {
      "type": "official",
      "cite": "105 N.C. App. 23"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "32 ALR2d 988",
      "category": "reporters:specialty",
      "reporter": "A.L.R. 2d",
      "opinion_index": -1
    },
    {
      "cite": "333 S.E.2d 496",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "parenthetical": "appellant must show prejudice for new trial"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "314 N.C. 336",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4692056,
        4694245,
        4687773
      ],
      "year": 1985,
      "pin_cites": [
        {
          "parenthetical": "appellant must show prejudice for new trial"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/314/0336-02",
        "/nc/314/0336-03",
        "/nc/314/0336-01"
      ]
    },
    {
      "cite": "328 S.E.2d 859",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "page": "864",
          "parenthetical": "appellant must show prejudice for new trial"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "74 N.C. App. 402",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8524744
      ],
      "year": 1985,
      "pin_cites": [
        {
          "page": "409",
          "parenthetical": "appellant must show prejudice for new trial"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/74/0402-01"
      ]
    },
    {
      "cite": "324 S.E.2d 829",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "page": "833"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "312 N.C. 770",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4755941
      ],
      "year": 1985,
      "pin_cites": [
        {
          "page": "777"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/312/0770-01"
      ]
    },
    {
      "cite": "294 S.E.2d 386",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "pin_cites": [
        {
          "page": "388"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "58 N.C. App. 734",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8526125
      ],
      "year": 1982,
      "pin_cites": [
        {
          "page": "737"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/58/0734-01"
      ]
    },
    {
      "cite": "249 S.E.2d 804",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1978,
      "opinion_index": 0
    },
    {
      "cite": "295 N.C. 735",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8569197,
        8569107,
        8569141,
        8569020,
        8569054
      ],
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/nc/295/0735-05",
        "/nc/295/0735-03",
        "/nc/295/0735-04",
        "/nc/295/0735-01",
        "/nc/295/0735-02"
      ]
    },
    {
      "cite": "248 S.E.2d 103",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1978,
      "pin_cites": [
        {
          "page": "106"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "38 N.C. App. 310",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553539
      ],
      "year": 1978,
      "pin_cites": [
        {
          "page": "314"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/38/0310-01"
      ]
    },
    {
      "cite": "319 S.E.2d 636",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "pin_cites": [
        {
          "page": "642",
          "parenthetical": "failure to object at trial on grounds of privilege constitutes waiver of objection"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "70 N.C. App. 159",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8521059
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "165",
          "parenthetical": "failure to object at trial on grounds of privilege constitutes waiver of objection"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/70/0159-01"
      ]
    },
    {
      "cite": "389 S.E.2d 41",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1990,
      "pin_cites": [
        {
          "page": "44",
          "parenthetical": "Supreme Court assumed arguendo .that plaintiff had impliedly waived privilege during discovery"
        },
        {
          "page": "44"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "326 N.C 326",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        5308491
      ],
      "weight": 2,
      "year": 1990,
      "pin_cites": [
        {
          "page": "331",
          "parenthetical": "Supreme Court assumed arguendo .that plaintiff had impliedly waived privilege during discovery"
        },
        {
          "page": "331"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/326/0326-01"
      ]
    },
    {
      "cite": "361 S.E.2d 734",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1987,
      "pin_cites": [
        {
          "page": "742"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "321 N.C. 1",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2570712
      ],
      "year": 1987,
      "pin_cites": [
        {
          "page": "14"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/321/0001-01"
      ]
    },
    {
      "cite": "259 S.E.2d 298",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "pin_cites": [
        {
          "parenthetical": "trial court may compel disclosure of privileged information prior to trial"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "298 N.C. 297",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571043,
        8570971,
        8570899,
        8571003,
        8570941
      ],
      "year": 1979,
      "pin_cites": [
        {
          "parenthetical": "trial court may compel disclosure of privileged information prior to trial"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/298/0297-05",
        "/nc/298/0297-03",
        "/nc/298/0297-01",
        "/nc/298/0297-04",
        "/nc/298/0297-02"
      ]
    },
    {
      "cite": "256 S.E.2d 818",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "pin_cites": [
        {
          "page": "823",
          "parenthetical": "trial court may compel disclosure of privileged information prior to trial"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "42 N.C. App. 292",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554015
      ],
      "year": 1979,
      "pin_cites": [
        {
          "page": "299",
          "parenthetical": "trial court may compel disclosure of privileged information prior to trial"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/42/0292-01"
      ]
    },
    {
      "cite": "311 S.E.2d 669",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "pin_cites": [
        {
          "page": "671",
          "parenthetical": "where trial court made no finding that admission of privileged information was necessary to proper administration of justice, trial court erred in admitting the information"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "66 N.C. App. 676",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525911
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "678",
          "parenthetical": "where trial court made no finding that admission of privileged information was necessary to proper administration of justice, trial court erred in admitting the information"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/66/0676-01"
      ]
    },
    {
      "cite": "125 S.E.2d 326",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1962,
      "pin_cites": [
        {
          "page": "331-32",
          "parenthetical": "where trial court made no finding that admission of privileged hospital records was necessary to proper administration of justice, trial court did not err in excluding them"
        },
        {
          "page": "331",
          "parenthetical": "privilege belongs to patient"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "257 N.C. 32",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565367
      ],
      "weight": 2,
      "year": 1962,
      "pin_cites": [
        {
          "page": "38-39",
          "parenthetical": "where trial court made no finding that admission of privileged hospital records was necessary to proper administration of justice, trial court did not err in excluding them"
        },
        {
          "page": "38"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/257/0032-01"
      ]
    },
    {
      "cite": "294 S.E.2d 220",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "306 N.C. 392",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8570630,
        8570799,
        8570673,
        8570711,
        8570745
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/nc/306/0392-01",
        "/nc/306/0392-05",
        "/nc/306/0392-02",
        "/nc/306/0392-03",
        "/nc/306/0392-04"
      ]
    },
    {
      "cite": "289 S.E.2d 898",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1982,
      "pin_cites": [
        {
          "page": "900"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "56 N.C. App. 473",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8522138
      ],
      "year": 1982,
      "pin_cites": [
        {
          "page": "476"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/56/0473-01"
      ]
    },
    {
      "cite": "229 S.E.2d 191",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 5,
      "year": 1976,
      "pin_cites": [
        {
          "page": "199"
        },
        {
          "page": "200",
          "parenthetical": "designation"
        },
        {
          "page": "200"
        },
        {
          "page": "200"
        },
        {
          "page": "200"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "291 N.C. 19",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8557249
      ],
      "weight": 4,
      "year": 1976,
      "pin_cites": [
        {
          "page": "31"
        },
        {
          "page": "34"
        },
        {
          "page": "34"
        },
        {
          "page": "34"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/291/0019-01"
      ]
    },
    {
      "cite": "377 S.E.2d 225",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1989,
      "opinion_index": 0
    },
    {
      "cite": "323 N.C. 704",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2562862,
        2566384,
        2561907,
        2560377,
        2564315
      ],
      "year": 1989,
      "opinion_index": 0,
      "case_paths": [
        "/nc/323/0704-02",
        "/nc/323/0704-04",
        "/nc/323/0704-05",
        "/nc/323/0704-03",
        "/nc/323/0704-01"
      ]
    },
    {
      "cite": "372 S.E.2d 314",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1988,
      "pin_cites": [
        {
          "page": "318"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "91 N.C. App. 478",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525983
      ],
      "year": 1988,
      "pin_cites": [
        {
          "page": "483"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/91/0478-01"
      ]
    },
    {
      "cite": "235 S.E.2d 828",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1977,
      "pin_cites": [
        {
          "page": "842"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "293 N.C. 105",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561617
      ],
      "year": 1977,
      "pin_cites": [
        {
          "page": "128"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/293/0105-01"
      ]
    },
    {
      "cite": "346 S.E.2d 638",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1986,
      "pin_cites": [
        {
          "page": "643"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "317 N.C. 590",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4772035
      ],
      "year": 1986,
      "opinion_index": 1,
      "case_paths": [
        "/nc/317/0590-01"
      ]
    },
    {
      "cite": "333 S.E.2d 496",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 1
    },
    {
      "cite": "314 N.C. 336",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4692056,
        4694245,
        4687773
      ],
      "year": 1985,
      "opinion_index": 1,
      "case_paths": [
        "/nc/314/0336-02",
        "/nc/314/0336-03",
        "/nc/314/0336-01"
      ]
    },
    {
      "cite": "328 S.E.2d 859",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 1
    },
    {
      "cite": "74 N.C. App. 402",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8524744
      ],
      "year": 1985,
      "opinion_index": 1,
      "case_paths": [
        "/nc-app/74/0402-01"
      ]
    },
    {
      "cite": "249 S.E.2d 804",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1978,
      "opinion_index": 1
    },
    {
      "cite": "295 N.C. 735",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8569197,
        8569107,
        8569141,
        8569020,
        8569054
      ],
      "year": 1978,
      "opinion_index": 1,
      "case_paths": [
        "/nc/295/0735-05",
        "/nc/295/0735-03",
        "/nc/295/0735-04",
        "/nc/295/0735-01",
        "/nc/295/0735-02"
      ]
    },
    {
      "cite": "248 S.E.2d 103",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1978,
      "pin_cites": [
        {
          "page": "106"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "38 N.C. App. 310",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553539
      ],
      "year": 1978,
      "opinion_index": 1,
      "case_paths": [
        "/nc-app/38/0310-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 865,
    "char_count": 20974,
    "ocr_confidence": 0.765,
    "pagerank": {
      "raw": 3.1170512191082613e-07,
      "percentile": 0.8603748712762791
    },
    "sha256": "659bca111be4613384c6c0b5ff7f29b2c88041d9d188ebcf7dc424e592e330a3",
    "simhash": "1:abef552f36de28b4",
    "word_count": 3415
  },
  "last_updated": "2023-07-14T19:24:40.355340+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge PARKER concurs.",
      "Judge WYNN dissents with separate opinion."
    ],
    "parties": [
      "MICHAEL WAYNE ADAMS v. JOSEPH SCOTT LOVETTE"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nPlaintiff appeals from orders entered 23 February 1990 and 2 November 1990 denying his motion to compel the production of the defendant\u2019s medical records and denying his motion for a new trial.\nIn the early morning hours of 13 September 1986, as either the plaintiff or the defendant was driving the defendant\u2019s car southward on Graham Road in Cumberland County, North Carolina, the car crossed the center line, struck a driveway embankment, and came to a rest in a yard on the east side of the road. At approximately 1:30 a.m., someone discovered the defendant\u2019s wrecked car sitting upright in the yard. The driver\u2019s door was open, and the plaintiff was rolling slowly on the driveway about fifteen to twenty feet away from the open driver\u2019s door. The defendant was found unconscious and sitting in the passenger\u2019s seat. An odor of alcohol was present in the car. A console separated the driver\u2019s and passenger\u2019s seats. The impact of the wreck damaged the right side of the defendant\u2019s car and \u201cjammed shut\u201d the passenger\u2019s door. It had to be opened with a five foot long pry bar. Both the plaintiff and the defendant were hospitalized with closed head injuries. Neither person could recall the events leading up to the accident, the accident itself, or which of them had been driving the car at the time of the accident. No one witnessed the accident.\nOn 6 September 1989, the plaintiff filed a complaint against the defendant alleging that the defendant\u2019s negligent driving on 13 September 1986 proximately caused the plaintiff\u2019s injuries. On 28 November 1989, the defendant filed an answer denying that he had been driving and alleging as an affirmative defense that if he had been driving, given that the plaintiff knew the defendant was intoxicated, the plaintiff was contributorially negligent for riding in the car with the defendant. On 5 December 1989, the plaintiff served on the defendant a request for production of all the defendant\u2019s medical records relating to the defendant\u2019s injuries. The defendant objected to the request on the grounds of relevance, prejudice, and burden, and the plaintiff filed a motion to compel the production of the medical records. The trial court ordered the defendant to provide it with the defendant\u2019s sealed medical records for an in camera review of them by the trial court. After the trial court reviewed the records, it denied the plaintiff\u2019s motion to compel finding \u201cthat there is nothing in said medical records providing relevant information as requested by Plaintiff . . . .\u201d Following the correct procedure for in camera review of requested discovery materials when the request is denied, the trial court ordered the defendant\u2019s sealed medical records to \u201cbe retained in the file for the purpose of appellate review in the event of subsequent appeal.\u201d See State v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977); Mack v. Moore, 91 N.C. App. 478, 483, 372 S.E.2d 314, 318 (1988), disc. rev. denied, 323 N.C. 704, 377 S.E.2d 225 (1989).\nThe case came on for trial at the 15 October 1990 civil session of the Cumberland County Superior Court. Before evidence was taken, the plaintiff made various motions in limine in which he requested, among other things, that the trial court prohibit the defendant from offering any evidence relating to the defendant\u2019s injuries, hospitalization, or consumption of alcohol before the accident. In response to this motion, the defendant offered his medical records subject to the deletion of a phrase in them which the defendant characterized as an \u201cassumption\u201d by a physician\u2019s assistant. The trial court granted the plaintiff\u2019s motion stating that it was bound by the previous discovery ruling on the medical records.\nBoth parties introduced evidence, and the trial court submitted the issues to the jury. On 26 October 1990, the jury returned a verdict finding that the plaintiff was not injured by the defendant\u2019s alleged negligence. The trial court entered a judgment accordingly, and the plaintiff made motions for judgment notwithstanding the verdict, for access to the defendant\u2019s medical records, and for a new trial. The trial court denied the plaintiff\u2019s motions, and the plaintiff appealed. The plaintiff then made a motion requesting that he be allowed to review the defendant\u2019s medical records for his appeal. The trial court denied this motion.\nThe issue is whether the trial court\u2019s alleged abuse of discretion in finding that the defendant\u2019s medical records contained no relevant information for purposes of discovery prejudiced the plaintiff requiring a new trial.\nThe plaintiff argues that because the trial court erred in finding that the defendant\u2019s medical records do not contain any relevant information for discovery purposes, he is entitled to a new trial.\nNorth Carolina Gen. Stat. \u00a7 1A-1, Rule 34(a) (1990) provides in pertinent part that:\n[a]ny party may serve on any other party a request (i) to produce and permit the party making the request ... to inspect and copy, any designated documents ... or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served ....\nThis rule \u201cis not, strictly speaking, a discovery procedure. Its purpose is not to discover the existence of documents or other tangible things but to require the production of those known to exist and which can be designated.\u201d W. Shuford, North Carolina Civil Practice and Procedure \u00a7 34-3 (3d ed. 1988). The rule serves to eliminate \u201cstrategic surprise,\u201d to permit \u201cthe issues to be simplified,\u201d and to expedite the trial. 8 C. Wright & A. Miller, Federal Practice and Procedure \u00a7 2202 (1970).\n\u201cRule 34 requires that as a prerequisite of production, documents must be (1) \u2018designated,\u2019 (2) \u2018within the scope\u2019 of Rule 26(b), and (3) in the \u2018possession, custody, or control\u2019 of a party from whom they are sought. The party seeking production must show that these prerequisites are satisfied.\u201d Willis v. Duke Power Co., 291 N.C. 19, 31, 229 S.E.2d 191, 199 (1976). The defendant apparently concedes, and we agree, that the plaintiff adequately designated the defendant\u2019s medical records in his request for production and that those records were in the defendant\u2019s possession, custody, or control. See id. at 34, 229 S.E.2d at 200 (designation); W. Shuford, supra, \u00a7\u00a7 34-6, -7 (designation and possession, custody, or control); 8 C. Wright & A. Miller, supra, \u00a7 2210 (possession, custody, or control). The trial court concluded, however, and the defendant argues on this appeal, that the plaintiff did not show that the defendant\u2019s medical records fall within the scope of N.C.G.S. \u00a7 1A-1, Rule 26(b) (1990).\nThe scope of discovery as delineated by N.C.G.S. \u00a7 1A-1, Rule 26(b) is stated in pertinent part as follows:\nUnless otherwise limited by order of the court in accordance with these rules, . . . [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ....\nAccordingly, subject to other discovery limitations not applicable here, the scope of discovery under N.C.G.S. \u00a7 1A-1, Rule 26(b) is limited only by considerations of privilege and relevance. Stone v. Martin, 56 N.C. App. 473, 476, 289 S.E.2d 898, 900, disc. rev. denied, 306 N.C. 392, 294 S.E.2d 220 (1982); see also N.C.G.S. \u00a7 1A-1, Rule 26(b)(3) (1990) (trial preparation materials); N.C.G.S. \u00a7 1A-1, Rule 26(b)(4) (1990) (expert testimony); N.C.G.S. \u00a7 1A-1, Rule 26(c) (1990) (protective orders); N.C.G.S. \u00a7 1A-1, Rule 35(a) (1990) (physical or mental examinations); 8 C. Wright & A. Miller, supra, \u00a7 2007 (scope of discovery limitations). We address these considerations in that order.\nPrivilege\nWhen the plaintiff requested that the defendant produce his medical records, the defendant did not raise the issue of privilege; rather, he argued that- his medical records were irrelevant, prejudicial, and burdensome. Likewise, during arguments on the plaintiff\u2019s motions in limine, the defendant stated that the physician-patient \u201cprivilege .. . has no application here.\u201d On appeal, however, he argues that his medical records are privileged under N.C.G.S. \u00a7 8-53 (1986), and therefore, because the trial court did not find that disclosure of these records was \u201cnecessary to a proper administration of justice,\u201d the trial court\u2019s order may not be disturbed. See Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 38-39, 125 S.E.2d 326, 331-32 (1962) (where trial court made no finding that admission of privileged hospital records was necessary to proper administration of justice, trial court did not err in excluding them); McGinnis v. McGinnis, 66 N.C. App. 676, 678, 311 S.E.2d 669, 671 (1984) (where trial court made no finding that admission of privileged information was necessary to proper administration of justice, trial court erred in admitting the information).\nNorth Carolina Gen. Stat. \u00a7 8-53 provides in pertinent part as follows:\nNo person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon .... Any resident or presiding judge in the district, either at the trial or prior thereto, . . . may, subject to G.S. 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice.\nThis qualified statutory privilege applies to requested disclosures whether they are made during discovery or at trial. W. Shuford, supra, \u00a7 26-7; cf. In re Albemarle Mental Health Ctr., 42 N.C. App. 292, 299, 256 S.E.2d 818, 823, disc. rev. denied, 298 N.C. 297, 259 S.E.2d 298 (1979) (trial court may compel disclosure of privileged information prior to trial). \u201cIt is for the party objecting to discovery [of privileged information] to raise the objection in the first instance and he has the burden of establishing the existence of the privilege.\u201d 8 C. Wright & A. Miller, supra, \u00a7 2016. A patient may expressly or impliedly waive his physician-patient privilege during discovery and at trial. Id.; Cates v. Wilson, 321 N.C. 1, 14, 361 S.E.2d 734, 742 (1987); Sims, 257 N.C. at 38, 125 S.E.2d at 331 (privilege belongs to patient); cf. Crist v. Moffatt, 326 N.C 326, 331, 389 S.E.2d 41, 44 (1990) (Supreme Court assumed arguendo .that plaintiff had impliedly waived privilege during discovery). Although \u201c[t]he facts and circumstances of a particular case determine whether a patient\u2019s conduct constitutes an implied waiver,\u201d Crist, 326 N.C. at 331, 389 S.E.2d at 44, a patient impliedly waives his privilege when he does not object to requested disclosures of the privileged information. See id.; Spencer v. Spencer, 70 N.C. App. 159, 165, 319 S.E.2d 636, 642 (1984) (failure to object at trial on grounds of privilege constitutes waiver of objection).\nWhen the plaintiff requested the defendant\u2019s medical records, the defendant impliedly waived his alleged privilege because he objected to the request, not on the grounds of privilege, but on the grounds of relevance. Therefore, if such information is relevant for discovery purposes, such information falls within the scope of discovery under N.C.G.S. \u00a7 1A-1, Rule 26(b).\nRelevance\nThe test of relevancy under N.C.G.S. \u00a7 1A-1, Rule 26(b) differs from the more \u201cstringent test\u201d of relevancy under N.C.G.S. \u00a7 8C-1, Rule 401 (1988). Willis, 291 N.C. at 34, 229 S.E.2d at 200. Information is relevant for discovery purposes if it is \u201creasonably calculated to lead to the discovery of admissible evidence . . . .\u201d N.C.G.S. \u00a7 1A-1, Rule 26(b)(1) (1990); Willis, 291 N.C. at 34, 229 S.E.2d at 200; Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 314, 248 S.E.2d 103, 106, disc. rev. denied, 295 N.C. 735, 249 S.E.2d 804 (1978). Although this test must be construed liberally, Willis, 291 N.C. at 34, 229 S.E.2d at 200, \u201cthe determination of relevance is within the . . . [trial] court\u2019s discretion,\u201d 4 J. Moore, J. Lucas, & G. Grotheer, Moore\u2019s Federal Practice \u00b6 26.56[1] (2d ed. 1991), and as with other discovery orders, may be reversed on appeal only upon a showing of abuse of that discretion. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 737, 294 S.E.2d 386, 388 (1982). A trial court abuses its discretion when \u201cits actions are manifestly unsupported by reason.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).\nThe plaintiff argues that the defendant\u2019s medical records contain relevant information concerning whether the defendant was driving the car at the time of the accident. At no time in the course of this case, however, has the plaintiff been allowed to review the medical records. The plaintiff argues that he was put on notice during the hearing on his motions in limine that the medical records contain this type of information. At the hearing, the defendant offered his medical records subject to the deletion of an alleged \u201cassumption\u201d in them by a physician\u2019s assistant. Based upon the defendant\u2019s statements during the hearing, the plaintiff suggests that the alleged \u201cassumption\u201d was the following phrase: \u201cpatient was driving a car.\u201d In fact, the controversial phrase which appears twice in the defendant\u2019s medical records reads as follows: \u201cHe apparently ran off the road . . . .\u201d Nothing else in the medical records suggests that the defendant was driving the car at the time of the accident. Assuming, without deciding, that the trial court abused its discretion in determining that this phrase was not \u201creasonably calculated\u201d to lead to the discovery of admissible evidence, we hold that the alleged error did not prejudice the plaintiff. In light of the uncontroverted facts that neither party could remember who had been driving at the time of the accident, the plaintiff was found outside the driver\u2019s door, the defendant was found in the passenger\u2019s seat, the passenger\u2019s seat was separated from the driver\u2019s seat by a console, and the passenger\u2019s door was \u201cjammed shut,\u201d the plaintiff has not shown that a different result would have likely occurred had the trial court not committed the alleged error. N.C.G.S. \u00a7 1A-1, Rule 61 (1990); Warren v. City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864, disc. rev. denied, 314 N.C. 336, 333 S.E.2d 496 (1985) (appellant must show prejudice for new trial). Accordingly, the trial court\u2019s orders are\nAffirmed.\nJudge PARKER concurs.\nJudge WYNN dissents with separate opinion.",
        "type": "majority",
        "author": "GREENE, Judge."
      },
      {
        "text": "Judge Wynn\ndissenting.\nI agree with the majority that the defendant impliedly waived his physician-patient privilege in this case. As such, the focal issue of this appeal is whether, in fact, the defendant\u2019s records contained any information \u201crelevant to the subject matter involved in the pending action.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 26(b)(1) (1990).\nIn State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986), our Supreme Court reiterated the test for relevancy by stating that \u201c[ejvidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case.\u201d Id. at 597, 346 S.E.2d at 643. This Court in Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103, disc. review denied, 295 N.C. 735, 249 S.E.2d 804 (1978), differentiated the relevancy test for discovery from the relevancy test for admissibility into evidence: \u201cTo be relevant for purposes of discovery,\u201d the Court stated, \u201cthe information need only be \u2018reasonably calculated\u2019 to lead to the discovery of admissible evidence.\u201d Id. at 314, 248 S.E.2d at 106. As such, this Court in Shellhorn concluded that \u201c[a] determination that particular information is relevant for discovery is not conclusive of its admissibility as relevant evidence at trial.\u201d Id.\nThe majority concludes here that even if there is evidence in the medical records that would be reasonably calculated to lead to discovery, the plaintiff was not prejudiced because there was evidence to show that the plaintiff was the actual driver of the car. In short, the majority concludes that even if the evidence in the medical records is relevant, it is not material and is therefore not prejudicial to the plaintiff. For this proposition they cite, Warren v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, disc. review denied, 314 N.C. 336, 333 S.E.2d 496 (1985), a case that is, in my opinion, distinguishable because the evidence in that case was admitted erroneously at trial and found not to have been prejudicial; whereas, in the case at hand, the evidence is sought for purposes of discovery. This puts an added qualification on the discovery of information before trial by requiring that nonprivileged information be not only relevant, but also material.\nI do not believe such a materiality requirement exists under North Carolina law. Rule 26(b)(1) \u201cdemonstrates the broad and liberal scope of the discovery provisions contained in the rules. Questions of materiality do not come into play.\u201d W. Shuford, North Carolina Civil Practice and Procedure \u00a7 26-5 (3d ed. 1988 & Supp. 1990). Likewise, N.C. Gen. Stat. \u00a7 1A-1, Rule 34, which controls the production of documents and things, contains the same broad scope of discovery set out in Rule 26. \u201cThe original [Rule 34] had been limited to inspection of documents and things that were \u2018material to any matter involved in the action.\u2019 The amendment struck this language and substituted the words, \u2018relating to any of the matters within the scope of the examination permitted by Rule 26(b).\u2019 \u201d 8 C. Wright & A. Miller, Federal Practice and Procedure \u00a7 2201 (1970). I disagree with the majority and, therefore, would conclude that relevant information that is not privileged is discoverable.\nMoreover, even if we consider the information here under the standard set by the majority, there was evidence in the medical records that was both relevant and material. Clearly, the statement entered in the medical records by the physician assistant indicating that the defendant \u201capparently ran off the road\u201d was not only relevant but material to the issue of who was driving the car at the time of the accident. Moreover, the medical records contain information on the identity of the physician assistant which would allow the plaintiff the opportunity to depose him for information that could lead to the discovery of admissible evidence. The medical records detail the nature of the injuries suffered by the defendant which could support the plaintiffs contention that the defendant was driving. To suggest that this information could not have produced a different result is, in my opinion, a speculation that could be well avoided by allowing the discovery of the information in the medical records.",
        "type": "dissent",
        "author": "Judge Wynn"
      }
    ],
    "attorneys": [
      "Rand, Finch & Gregory, P.A., by Thomas Henry Finch, Jr., for plaintiff-appellant.",
      "Singleton, Murray, Craven & Inman, by Rudolph G. Singleton, Jr., for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "MICHAEL WAYNE ADAMS v. JOSEPH SCOTT LOVETTE\nNo. 9112SC187\n(Filed 7 January 1992)\n1. Evidence and Witnesses \u00a7 2658 (NCI4th)\u2014 medical records\u2014 objection on grounds of relevance \u2014 privilege waived\nWhen plaintiff requested defendant\u2019s medical records, defendant impliedly waived his alleged privilege because he objected to the request, not on the ground of privilege, but on the ground of relevance. N.C.G.S. \u00a7 8-53.\nAm Jur 2d, Trial \u00a7 426.\n2. Automobiles and Other Vehicles \u00a7 697 (NCI4th)\u2014 identity of driver \u2014 defendant\u2019s medical records excluded \u2014no error\nIn an action to recover for injuries sustained by plaintiff in an automobile accident, plaintiff was not entitled to a new trial based on the trial court\u2019s alleged abuse of discretion in finding that defendant\u2019s medical records contained no relevant information on who was driving for purposes of discovery, since in light of the uncontroverted facts that neither party could remember who had been driving at the time of the accident, the plaintiff was found outside the driver\u2019s door, the defendant was found in the passenger\u2019s seat, the passenger\u2019s seat was separated from the driver\u2019s seat by a console, and the passenger\u2019s door was \u201cjammed shut,\u201d plaintiff did not show that a different result would have likely occurred had the trial court not committed the alleged error. N.C.G.S. \u00a7 1A-1, Rule 26(b).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 996.\nProof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident. 32 ALR2d 988.\nJudge WYNN dissenting.\nAppeal by plaintiff from order entered 23 February 1990 by Judge E. Lynn Johnson and order entered 2 November 1990 by Judge Gregory A. Weeks in CUMBERLAND County Superior Court. Heard in the Court of Appeals 14 November 1991.\nRand, Finch & Gregory, P.A., by Thomas Henry Finch, Jr., for plaintiff-appellant.\nSingleton, Murray, Craven & Inman, by Rudolph G. Singleton, Jr., for defendant-appellee."
  },
  "file_name": "0023-01",
  "first_page_order": 51,
  "last_page_order": 60
}