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    "judges": [
      "Judges GEER and STEPHENS concur."
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    "parties": [
      "ROADWAY EXPRESS, INC., Plaintiff v. MICKEY JOE HAYES and INZONE, INC., d/b/a INZONE, Defendants v. CANDACE SUE HORN, Individually and as ADMINISTRATRIX of the Estate of MARK JOSEPH HORN, Intervening Plaintiff"
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      {
        "text": "WYNN, Judge.\nThe Fifth Amendment provides a shield against self-incrimination. U.S. Const, amend. V. In this case, Defendant argues that the Fifth Amendment protects him from producing (1) his medical records and (2) factual information regarding medications that he may have been under the influence of at the time of the accident. We uphold the order to produce his medical records but reverse the order compelling him to disclose factual information regarding his use of medications.\nThe facts indicate that on 7 March 2004, Defendant Mickey Hayes\u2019s vehicle collided with a-tractor trailer driven by Mark Joseph Horn and owned by Plaintiff Roadway Express, Inc. As a result of the collision, the tractor trailer struck a bridge guardrail causing the tractor to detach from the trailer, fall off the bridge and overturn before landing on an embankment below the bridge. Mr. Horn died at the scene of the accident.\nPlaintiffs Roadway Express, Inc. and Constance Horn, widow of the truck driver, brought an action against Mr. Hayes and Inzone, Inc. Plaintiffs alleged that Mr. Hayes was legally intoxicated from beverages that he had consumed at Inzone nightclub/sports bar from which Plaintiffs sought recovery based on its alleged willful, wanton, and reckless disregard for the rights of others.\nDuring discovery, Plaintiff Roadway Express requested all medical records regarding Defendant Hayes\u2019s medical treatment after the accident. Defendant objected to the discovery request, arguing that his medical records were protected by the physician-patient privilege and his Fifth Amendment right against self-incrimination.\nThe trial judge ordered Defendant to produce the requested medical records under seal and conducted an in camera inspection. Afterwards, on 17 June 2005, the trial judge ordered Defendant to provide copies of the records to Plaintiff on the condition that:\nThe records and the information contained therein are not to be shared with anyone other than experts retained by the parties (but not if such experts are also retained by the State to assist with the criminal prosecution of Hayes arising out of the subject collision).\nPlaintiff also served a set of admissions on Defendant to:\n1. Admit that on March 6, 2004, you took the prescription medication diazepam.\n2. Admit that on March 7, 2004, you took the prescription medication diazepam.\n3. Admit that during the early morning of March 7, 2004, you were under the influence of the prescription medicine diazepam.\n4.Admit that on March 7, 2004, the prescription medication diazepam was present in your system.\n5. Admit that you consumed alcoholic beverages during the late evening of March 6, and the early morning of March 7, 2004, while knowing diazepam was present in your system.\nAdditionally, Plaintiff, through interrogatories, asked whether Defendant had been taking any prescription medications at the time of the accident, including diazepam. Defendant refused to respond to Plaintiff\u2019s request for admissions or interrogatories relating to any prescription drugs he may have been under the influence of at the time of the accident, arguing that such information was protected under the physician-patient privilege and the Fifth Amendment.\nOn 23 June 2005, Plaintiff filed a motion to compel production of Defendant\u2019s responses to Plaintiff\u2019s request for admissions and interrogatories. On 30 June 2005, the trial judge granted Plaintiff\u2019s motion to compel and ordered Defendant to serve complete responses to Plaintiff\u2019s request for admissions and interrogatories.\nFrom the 17 June 2005 order to produce his medical records, and the 30 June 2005 order to respond to Plaintiff\u2019s request for admissions and interrogatories, Defendant appeals. But we note that discovery orders are interlocutory and therefore not immediately appealable unless they affect a substantial right. Isom v. Bank of America, N.A., 177 N.C. App. \u2014, \u2014, 628 S.E.2d 458, 461 (2006). However, \u201cwhen ... 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[.]\u201d Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). Moreover, a trial judge\u2019s ruling requiring a party to provide evidence over a Fifth Amendment objection is also immediately appealable. See Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999) (reversing trial court\u2019s order compelling Defendant\u2019s testimony in civil action where Defendant asserted Fifth Amendment privilege against self-incrimination). Here, because Defendant Hayes asserts his Fifth Amendment privilege against self-incrimination and the physician-patient privilege as reasons for not producing documents and responding to Plaintiff\u2019s discovery requests, the orders on appeal are immediately appealable.\nThe issues on appeal are (I) Do the Fifth Amendment privilege against self-incrimination and the physician-patient privilege shield Defendant from producing \u201cany and all records related to any medical treatment that [he] received as a result of the automobile accident\u201d and (II) Does the Fifth Amendment shield Defendant from providing factual information regarding medications that he may have been under the influence of at the time of the accident?\nI.\nFifth Amendment protection applies in any type of proceeding, whether it is criminal, civil, administrative, investigatory, or adjudicatory. Maness v. Meyers, 419 U.S. 449, 463-64, 42 L. Ed. 2d 574, 586-87 (1975). The protection exists not only for evidence which may directly support a criminal conviction, but for \u201cinformation which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.\u201d Id. at 461, 42 L. Ed. 2d at 585 (citation omitted). However, the Fifth Amendment privilege only applies to testimonial or communicative acts. Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d 908, 914 (1966).\nIn Schmerber, the United States Supreme Court held that blood test evidence was neither testimonial nor communicative and therefore the evidence was admissible. Id. at 765, 16 L. Ed. 2d at 916-17. \u201c[B]oth federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements . . . the privilege is a bar against compelling \u2018communications\u2019 or \u2018testimony\u2019, but that compulsion which makes a suspect or accused the source of \u2018real or physical evidence\u2019 does not violate it.\u201d Id. at 764, 16 L. Ed. 2d at 916.\nIndeed, \u201cNorth Carolina has long recognized the distinction between compulsory testimonial evidence and compulsory physical disclosure.\u201d State v. Strickland, 276 N.C. 253, 260, 173 S.E.2d 129, 133 (1970).\n\u2018The established rule in this jurisdiction is that \u2018(t)he scope of the privilege against self-incrimination, in history and in principle, includes only the process of testifying by word of mouth or in writing, i.e., the process of disclosure by utterance. It has no application to such physical evidential circumstances as may exist on the accused\u2019s body or about his person.\u201d\nId. (quoting State v. Paschal, 253 N.C. 795, 797, 117 S.E.2d 749, 750-51 (1961)).\nThe facts of this case are analogous to those in Schmerber. The medical records sought by Plaintiff include a hospital lab analysis and a State Bureau of Investigation lab analysis of Defendant\u2019s blood taken after the accident. As in Schmerber, the results of Defendant\u2019s blood test are not protected under the Fifth Amendment because the results of the test are neither testimonial nor communicative. Under the facts of this case, Defendant\u2019s Fifth Amendment right against self-incrimination does not shield him from producing his medical records.\nLikewise, Defendant\u2019s medical records are not protected by the physician-patient privilege. Section 8-53 of the North Carolina General Statutes provides that \u201c[n]o 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... or to do any act for him as a surgeon[.]\u201d N.C. Gen. Stat. \u00a7 8-53 (2005). Medical records are covered by the statute to the extent that the records contain entries made by physicians and surgeons, or under their direction, that include information and communications obtained by the doctor for the purpose of providing care to the patient. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 38, 125 S.E.2d 326, 331 (1962).\nThe physician-patient privilege is strictly construed and the patient bears the burden of establishing the existence of the privilege and objecting to the introduction of evidence covered by the privilege. Mims v. Wright, 157 N.C. App. 339, 342, 578 S.E.2d 606, 609 (2003). The physician-patient privilege is not an absolute privilege, and it is in the trial court\u2019s discretion to compel the production of evidence that may be protected by the privilege if the evidence is needed for a proper administration of justice. See N.C. Gen. Stat. \u00a7 8-53. \u201cJudges should not hesitate to require the disclosure where it appears to them to be necessary in order that the truth be known and justice be done.\u201d Sims, 257 N.C. at 39, 125 S.E.2d at 331.\nHere, the trial judge methodically ordered Defendant to produce his medical records. In the initial order ordering the production of Defendant\u2019s medical records under seal for an in camera review, the trial judge limited the scope of the production by requesting only those medical records that mention or reflect the results of any tests performed to determine Defendant\u2019s blood alcohol content and the presence of controlled substances in his body. It was only after the trial judge reviewed the medical records and determined their rele-vanee to the matter that he ordered Defendant to produce them to Plaintiff. Even in the order requiring Defendant to produce the medical records, the trial judge limited the scope of production, providing \u201c[t]he records and the information contained therein are not to be shared with anyone other than experts retained by the parties (but not if such experts are also retained by the State to assist with the criminal prosecution of Hayes arising out of the subject collision.)\u201d\nDefendant\u2019s reliance on Mims to support his argument that the trial court erred in ordering the production of his medical records in violation of the physician-patient privilege is misplaced. In Mims, this Court held that the trial judge abused his discretion in ordering the production of the defendant\u2019s medical records where there was no evidence in the record that they might have \u201c[led] to a justifiable conclusion that the interests of justice outweighed the protected privilege.\u201d Mims, 157 N.C. App. at 344, 578 S.E.2d at 610. Unlike the plaintiffs in Mims, Plaintiff in this case contends Defendant\u2019s physical or medical condition contributed to the accident. Id. Moreover, Defendant in this case has asserted the sudden emergency doctrine as an affirmative defense to Plaintiff\u2019s claims, which places his medical condition at the time of the accident into question. Thus, in light of Plaintiff\u2019s allegations and Defendant\u2019s affirmative defense to those allegations, there is evidence in the record that may justify the disclosure of Defendant\u2019s medical records in the interest of justice.\n\u201cThe decision that disclosure is necessary to a proper administration of justice \u2018is one made in the discretion of the trial judge, and the defendant must show an abuse of discretion in order to successfully challenge the ruling.\u2019 \u201d State v. Smith, 347 N.C. 453, 461, 496 S.E.2d 357, 362 (1998) (citation omitted). As we can discern no abuse of the trial court\u2019s discretion in ordering the production of Defendant\u2019s medical records in the interest of justice, we affirm the 17 June 2005 order compelling the production of Defendant\u2019s medical records.\nII.\nDefendant further contends the Fifth Amendment protects him from having to respond to inquiries under the request for admissions and second set of interrogatories regarding factual information about his use of alcohol, diazepam, and any other medications. We agree.\nThe Fifth Amendment protects individuals from being compelled to testify in a way that could incriminate him or might subject him to fines, penalties, or forfeiture. State v. Pickens, 346 N.C. 628, 637, 488 S.E.2d 162, 166 (1997). To determine whether the Fifth Amendment privilege applies, the trial court must evaluate whether, given the implications of the question and the setting in which it was asked, a real danger of self-incrimination by the witness exists. Id., 488 S.E.2d at 167. The court should only deny the claim of Fifth Amendment privilege if there is no possibility of such danger. Id.\nIn this case, we cannot say that there is no possibility of danger for self-incrimination by. Defendant in responding to Plaintiff\u2019s request for admissions and interrogatories, which relate to the prescription drugs Defendant may have been under the influence of at the time of the accident. Plaintiff argues that the trial judge\u2019s statement in the order compelling Defendant to respond to the discovery requests that \u201cthe information is not to be shared with anyone other than experts retained by the parties (but not if such experts are also retained by the State to assist with the criminal prosecution of Hayes arising out of the subject collision) and persons assisting with the prosecution or defense of the action[,]\u201d cures any concerns about the production of this evidence in any other proceeding, including a criminal matter. We hold, however, that this limitation is insufficient to ensure that Defendant\u2019s Fifth Amendments' rights are protected and that there is no possibility of danger of self-incrimination. We, therefore, conclude the trial court erred when ordering Defendant to respond to Plaintiff\u2019s second request for admissions and interrogatories. Accordingly, we reverse the trial court\u2019s 30 June 2005 order compelling Defendant to respond to Plaintiff\u2019s second request for admissions and second set of interrogatories.\nNotwithstanding, Defendant\u2019s refusal to respond to Plaintiff\u2019s request for admissions and interrogatories related to any prescription drugs he may have been under the influence of at the time of the accident may preclude him from asserting certain affirmative defenses. McKillop v. Onslow County, 139 N.C. App. 53, 62-63, 532 S.E.2d 594, 600-01 (2000). This Court has held that \u201cif ... a defendant pleads an affirmative defense[,] he should not have it within his power to silence his own adverse testimony when such testimony is relevant to the . . . defense.\u201d Cantwell v. Cantwell, 109 N.C. App. 395, 397, 427 S.E.2d 129, 130 (1993).\nIn Cantwell, the plaintiff was asked about matters that related to her alleged adulterous activities, and she asserted her Fifth Amendment privilege against self-incrimination. This Court held that she could properly assert the Fifth Amendment as a basis for not testifying regarding the alleged adultery, but that she could not maintain her alimony claim if she refused to testify. 109 N.C. App. at 398, 427 S.E.2d at 131. The Court reasoned that adultery bars alimony and, therefore, without the plaintiffs testimony, she was not providing the judge with enough information to make a determination about alimony. Id.\nThis Court applied similar reasoning in Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433 (1996). In Qurneh, the father sought to obtain custody of his child, but refused to testify about his illegal drug use based on his right against self-incrimination. The Court ruled that the trial court correctly found that the father\u2019s refusal to answer questions about his illegal drug involvement denied the trial court the ability to make a determination of whether he was fit to have custody of his child. This Court held that the father could not be compelled to testify about his illegal substance abuse, but that he could not also maintain his claim for custody without testifying on this issue. Id. at 558, 471 S.E.2d at 436. \u201cThe privilege against self-incrimination is intended to be a shield and not a sword.\u201d Id.\nIn the case sub judice, Defendant asserted the affirmative defense of sudden emergency. Under the sudden emergency doctrine, a person is not held to the ordinary standard of care, but to the same standard of care that an ordinarily prudent person would have used when faced with a similar emergency. Sparks v. Willis, 228 N.C. 25, 28, 44 S.E.2d 343, 344-45 (1947). Defendant\u2019s state of mind, including whether he was under the influence of prescription drugs, at the time of the accident must be evaluated to determine whether Defendant had the ability to act as an ordinarily prudent person would have acted at the time of the accident.\nUpon remand for trial of this matter, our holding permits Defendant to assert his Fifth Amendment privilege to protect himself from self-incrimination in responding to Plaintiff\u2019s request for admissions and interrogatories relating to factual information on medications he may have been under the influence of at the time of the accident. However, at trial, if the trial court determines such responses are essential to evaluate the application of the sudden emergency doctrine, the trial court must hold that Defendant\u2019s choice to invoke his rights not to respond to the request for admissions and interrogatories precludes his assertion of the sudden emergency defense to Plaintiffs allegations.\nAffirmed in part; reversed in part.\nJudges GEER and STEPHENS concur.\n. Additionally, this Court has recognized that \u201c[t]he finder of fact in a civil cause may use a witness\u2019 invocation of his Fifth Amendment privilege against self-incrimination to infer that his truthful testimony would have been unfavorable to him.\u201d McKillop, 139 N.C. App. at 63-64, 532 S.E.2d at 601.\n. Defendant also asserted contributory negligence as an affirmative defense; however, that defense does not appear to be affected by Defendant\u2019s invocation of his Fifth Amendment rights.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Womble, Carlyle, Sandridge & Rice by Jack M. Strauch, for plaintiff-appellee Roadway Express, Inc.",
      "Teague, Rotenstreich & Stanaland, LLP by Kenneth B. Rotenstreich and Paul A. Daniels, for the defendant-appellant Mickey Joe Hayes.",
      "Brian E. Gates for defendant-appellee Inzone.",
      "Law Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills, for intervening plaintiff-appellee Constance Sue Horn."
    ],
    "corrections": "",
    "head_matter": "ROADWAY EXPRESS, INC., Plaintiff v. MICKEY JOE HAYES and INZONE, INC., d/b/a INZONE, Defendants v. CANDACE SUE HORN, Individually and as ADMINISTRATRIX of the Estate of MARK JOSEPH HORN, Intervening Plaintiff\nNo. COA05-1204\n(Filed 20 June 2006)\n1. Appeal and Error\u2014 appealability \u2014 discovery orders\u2014 privilege against self-incrimination \u2014 physician-patient privilege\nInterlocutory discovery orders affected a substantial right and were immediately appealable by defendant where defendant asserted his Fifth Amendment privilege against self-incrimination and the physician-patient privilege as reasons for not producing documents and responding to plaintiff\u2019s discovery request in an action arising out of an automobile accident.\n2. Discovery\u2014 medical records \u2014 physician-patient privilege\nThe trial court did not abuse its discretion in an action arising out of an automobile \u00e1ccident by ordering the production of defendant\u2019s medical records in the interest of justice, because: (1) the results of a blood test are not protected under the Fifth Amendment when the results of the test are neither testimonial nor communicative; and (2) defendant\u2019s medical records are not protected by the physician-patient privilege since the trial court reviewed the medical records to determine their relevance to the matter and limited the scope of production, plaintiff contends defendant\u2019s physical or mental condition contributed to the accident, and defendant asserted the sudden emergency doctrine as an affirmative defense to plaintiff\u2019s claims.\n3. Discovery\u2014 admissions \u2014 interrogatories\u2014medications at time of automobile accident\nThe trial court erred by ordering defendant to respond to plaintiffs second request for admissions and interrogatories relating to factual information on medications he may have been under the influence of at the time of an automobile accident, because defendant is entitled to assert his Fifth Amendment privilege to protect himself from self-incrimination in relation to prescription drugs defendant may have been under the influence of at the time of the accident. However, if the trial court determines such responses are essential to evaluate the application of the sudden emergency doctrine, the trial court must hold that defendant\u2019s choice to invoke his rights not to respond to the request for admissions and interrogatories precludes his assertion of the sudden emergency defense to plaintiffs allegations.\nAppeal by Defendant Mickey Joe Hayes from orders entered 17 June and 30 June 2005 by Judge Anderson D. Cromer and Judge Ronald E. Spivey, respectively, in Superior Court, Forsyth County. Heard in the Court of Appeals 9 May 2006.\nWomble, Carlyle, Sandridge & Rice by Jack M. Strauch, for plaintiff-appellee Roadway Express, Inc.\nTeague, Rotenstreich & Stanaland, LLP by Kenneth B. Rotenstreich and Paul A. Daniels, for the defendant-appellant Mickey Joe Hayes.\nBrian E. Gates for defendant-appellee Inzone.\nLaw Offices of Jonathan S. Dills, P.A., by Jonathan S. Dills, for intervening plaintiff-appellee Constance Sue Horn."
  },
  "file_name": "0165-01",
  "first_page_order": 197,
  "last_page_order": 206
}
