{ "id": 8354191, "name": "DEBORAH WINDMAN ADMINISTRATRIX of the Estate of JAMES PIERCE, deceased, Plaintiff v. BRITTHAVEN, INC. d/b/a BRITTHAVEN OF LOUISBURG and HILLCO, LTD, Defendants", "name_abbreviation": "Windman v. Britthaven, Inc.", "decision_date": "2005-10-04", "docket_number": "No. COA04-1414", "first_page": "630", "last_page": "633", "citations": [ { "type": "official", "cite": "173 N.C. App. 630" } ], "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": "2004 N.C. Sess. Laws 149", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "547 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135616, 135649, 135948, 135763, 135735 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0371-05", "/nc/353/0371-03", "/nc/353/0371-01", "/nc/353/0371-02", "/nc/353/0371-04" ] }, { "cite": "541 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "788" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439394 ], "year": 2001, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0018-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381", "parenthetical": "An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all parties involved in the controversy." } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "361-62", "parenthetical": "An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all parties involved in the controversy." } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "551 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "877" }, { "page": "877" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435865 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "595" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0589-01" ] } ], "analysis": { "cardinality": 453, "char_count": 8520, "ocr_confidence": 0.746, "pagerank": { "raw": 4.1810879426564086e-07, "percentile": 0.9125597669979987 }, "sha256": "a13aaaa307942062bc35409876217bbcaf573fc5de062b5d0ff5f4fc69177e3e", "simhash": "1:cfac474e321fdc27", "word_count": 1341 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and LEVINSON concur." ], "parties": [ "DEBORAH WINDMAN ADMINISTRATRIX of the Estate of JAMES PIERCE, deceased, Plaintiff v. BRITTHAVEN, INC. d/b/a BRITTHAVEN OF LOUISBURG and HILLCO, LTD, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nIn North Carolina, orders regarding discovery matters will not be upset on appeal absent a showing of abuse of discretion. Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 595, 551 S.E.2d 873, 877 (2001). Here, Defendants (who operate a nursing home) assert the trial court erred by compelling the production of statutory peer review documents that were privileged under N.C. Gen. Stat. \u00a7 90-21.22A(c) (2003). Because nursing home privileges are covered under N.C. Gen. Stat. \u00a7 131E-107 which at the time of the trial court\u2019s order contained no protection from discovery of materials produced by nursing home peer review committees, we uphold the trial court\u2019s order compelling discovery.\nIn August 2003, Plaintiff Deborah Windman brought actions against Defendants Britthaven, Inc. d/b/a Britthaven of Louisburg and Hillco, Ltd., seeking damages for the death of her father, James Pierce, while he resided at Defendants\u2019 nursing home facility. She alleged that Mr. Pierce suffered damages including a broken hip, pain and suffering, and wrongful death as a result of Britthaven\u2019s negligence.\nIn October 2003, Ms. Windman served Britthaven with Requests for Production of Documents seeking, inter alia, \u201c[a]ny and all incident/accident reports, unusual occurrence reports, or various reports in your control which relate or pertain in any way to James L. Pierce, including, but not limited to, any incident reports submitted to the N.C. Department of Human Resources as required by NCAC T10 :03H.0317(c).\u201d In response, Britthaven asserted the documents were protected from discovery under the statutory peer review privileges of N.C. Gen. Stat. \u00a7 90-21.22A(c) (2003). Thereafter, Ms. Windman filed a Motion to Compel production of the documents and Britthaven filed a Motion for Protective Order.\nAfter reviewing the incident report documents in camera, the trial judge granted Ms. Windman\u2019s Motion to Compel and denied Britthaven\u2019s Motion for Protective Order. From this Order, Britthaven appeals.\nPreliminarily, we observe that the trial court\u2019s order compelling discovery is interlocutory from which there is generally no right to appeal. See N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2003); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all parties involved in the controversy.).\nHere, Britthaven claims a right to appeal based upon the established exception that delaying this appeal would prejudice a substantial right. See N.C. Dep\u2019t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995); Liggett Group Inc. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993). Indeed, although discovery orders do not generally affect substantial rights, we find merit in Britthaven\u2019s assertion that this appeal falls under one of the recognized narrow exceptions to that rule \u2014 where 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. Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). Because Britthaven asserts that the ordered documents were protected from discovery under section 90-21.22A of the North Carolina General Statutes and we find that that assertion is not frivolous or insubstantial, we hold that the discovery order affects a substantial right. Id. Accordingly, we deny Ms. Windman\u2019s motion to dismiss this appeal as interlocutory.\nOn appeal, Britthaven argues that the trial court abused its discretion in concluding that the documents produced for in camera inspection were not protected by any peer review privilege. We disagree.\n\u201cIt is \u2018well established that orders regarding discovery matters are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of that discretion.\u2019 \u201d Velez, 144 N.C. App. at 595, 551 S.E.2d at 877 (quoting Evans v. United Servs. Auto Ass\u2019n, 142 N.C. App. 18, 27, 541 S.E.2d 782, 788, disc. review denied, 353 N.C. 371, 547 S.E.2d 810 (2001)). Therefore, we review the trial court\u2019s order granting Ms. Windman\u2019s Motion to Compel for abuse of discretion.\nBritthaven contends that the incident/accident reports are protected by section 90-21.22A(c) of the North Carolina General Statutes which, in part, states:\nThe 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, 131E-309, or 58-2-100; and shall not be subject to discovery or introduction into evidence in any civil action against a provider of health care services who directly provides services and is licensed under this Chapter, a PSO licensed under Article 17 of Chapter 13 IE of the General Statutes, an ambulatory surgical facility licensed under Chapter 131E of the General Statutes, or a hospital licensed under Chapter 122C or Chapter 131E of the General Statutes or that is owned or operated by the Statef.]\nN.C. Gen. Stat. \u00a7 90-21.22A(c) (2003). However, for this section to protect the documents at issue from discovery, Britthaven must fit into one of the following four categories: (1) a provider of health care services who directly provides services and is licensed under Chapter 90; (2) a PSO licensed under Article 17 of Chapter 131E of the General Statutes; (3) an ambulatory surgical facility licensed under Chapter 131E of the General Statutes, or (4) a hospital licensed under Chapter 122C or Chapter 131E of the General Statutes or that is owned or operated by the State. N.C. Gen. Stat. \u00a7 90-21.22A(c). Nursing homes are licensed under the Nursing Home Licensure Act which is located in Article 6, Chapter 131E of the North Carolina General Statutes. Nursing homes do not fit into any of the four categories of health care providers whose records and materials from medical review committees are protected from discovery. Therefore, section 90-21.22A does not protect Britthaven\u2019s incident/accident reports from discovery.\nInstead, Section 131E-107 of the North Carolina General Statutes addresses peer review committees for nursing homes. At the time of the trial court\u2019s order, section 131E-107 contained no protection from discovery for any materials produced by the peer review committees. N.C. Gen. Stat. \u00a7 131E-107 (2003). However, section 131E-107 was recently amended to protect records and materials produced by peer review committees from discovery. N.C. Gen. Stat. \u00a7 131E-107(b) (2005). The amendment became effective 2 August 2004, several months after the 17 May 2004 order compelling discovery and therefore does not apply to this case. 2004 N.C. Sess. Laws 149, s.2.2.\nAs neither section 90-21.22A nor section 131E-107 protect the incident/accident reports from discovery, the trial court did not err in concluding that \u201c[t]he reports requested by the plaintiff are not protected by any peer review privilege of state and federal law.\u201d Accordingly, the trial court did not abuse its discretion in granting Ms. Windman\u2019s Motion to Compel the in camera documents.\nAffirmed.\nJudges CALABRIA and LEVINSON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by Adam Stein, and Henson Fuerst, P.A., by Thomas W. Henson, Jr., for plaintiff-appellee.", "Yates, McLamb & Weyher, LLP, by Michael C. Hurley and Erin D. McNeil, for defendant-appellants." ], "corrections": "", "head_matter": "DEBORAH WINDMAN ADMINISTRATRIX of the Estate of JAMES PIERCE, deceased, Plaintiff v. BRITTHAVEN, INC. d/b/a BRITTHAVEN OF LOUISBURG and HILLCO, LTD, Defendants\nNo. COA04-1414\n(Filed 4 October 2005)\n1. Appeal and Error\u2014 appealability \u2014 discovery order \u2014 statutory privilege \u2014 substantial right\nThe appeal of \u00e1n interlocutory discovery order was not premature because it fell within an exception for a party asserting a statutory privilege which directly relates to the matter to be disclosed.\n2. Discovery\u2014 peer review reports \u2014 nursing homes \u2014 effective dates\nThe trial court did not abuse its discretion by concluding that nursing home reports were not protected by any peer review privilege and granting a motion to compel production.\nAppeal by Defendants from order entered 17 May 2004 by Judge Leon Stanback in Superior Court, Vance County. Heard in the Court of Appeals 13 September 2005.\nFerguson, Stein, Chambers, Gresham & Sumter, P.A., by Adam Stein, and Henson Fuerst, P.A., by Thomas W. Henson, Jr., for plaintiff-appellee.\nYates, McLamb & Weyher, LLP, by Michael C. Hurley and Erin D. McNeil, for defendant-appellants." }, "file_name": "0630-01", "first_page_order": 660, "last_page_order": 663 }