{ "id": 8376286, "name": "FREDDY L. HAYES, Administrator of the Estate of INA HAYES, Plaintiff v. PREMIER LIVING, INC., PREMIER LIVING AND REHAB, LLC, DOVE HEALTHCARE, LLC, CHAN VON HENNER, KEVIN PENNINGTON, ALLENE VON HENNER, and E. AUTRY DAWSON, SR., Defendants", "name_abbreviation": "Hayes v. Premier Living, Inc.", "decision_date": "2007-02-20", "docket_number": "No. COA06-661", "first_page": "747", "last_page": "753", "citations": [ { "type": "official", "cite": "181 N.C. App. 747" } ], "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": "625 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635064, 12635065, 12635063 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/625/0779-02", "/se2d/625/0779-03", "/se2d/625/0779-01" ] }, { "cite": "617 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633720 ], "year": 2005, "pin_cites": [ { "page": "45", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0040-01" ] }, { "cite": "631 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636216 ], "year": 2006, "pin_cites": [ { "page": "882", "parenthetical": "stating that \"[t]he party seeking either attorney-client privilege or work-product privilege bears the burden of proof'" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0879-01" ] }, { "cite": "619 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633984 ], "year": 2005, "pin_cites": [ { "page": "524", "parenthetical": "holding that materials produced by a nursing home review committee were not privileged because N.C. Gen. Stat. \u00a7 131E-107 was not in effect at the time the trial court filed its order compelling discovery" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0522-01" ] }, { "cite": "360 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797965 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0356-01" ] }, { "cite": "172 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321099 ], "year": 2005, "pin_cites": [ { "page": "601", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0595-01" ] }, { "cite": "447 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1221548 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ga/259/0447-02" ] }, { "cite": "336 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538080, 2538689, 2537376, 2537868, 2537009 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0615-05", "/nc/336/0615-01", "/nc/336/0615-04", "/nc/336/0615-02", "/nc/336/0615-03" ] }, { "cite": "440 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523743 ], "year": 1994, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0579-01" ] }, { "cite": "178 N.C. App. 528", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378681 ], "year": 2006, "pin_cites": [ { "page": "531", "parenthetical": "stating that \"[t]he party seeking either attorney-client privilege or work-product privilege bears the burden of proof'" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0528-01" ] }, { "cite": "173 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354191 ], "year": 2005, "pin_cites": [ { "page": "633", "parenthetical": "holding that materials produced by a nursing home review committee were not privileged because N.C. Gen. Stat. \u00a7 131E-107 was not in effect at the time the trial court filed its order compelling discovery" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0630-01" ] }, { "cite": "347 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "829", "parenthetical": "emphasis added" }, { "page": "828", "parenthetical": "internal quotation omitted" }, { "parenthetical": "internal quotation omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737744 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "83", "parenthetical": "emphasis added" }, { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0076-01" ] }, { "cite": "511 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237793 ], "year": 1999, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0341-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "578" }, { "page": "581" } ], "opinion_index": 0 }, { "cite": "315 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "year": 1999, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "578 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186546 ], "year": 2003, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0339-01" ] }, { "cite": "511 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "350 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132249 ], "year": 1999, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0071-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 90-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 } ], "analysis": { "cardinality": 613, "char_count": 14299, "ocr_confidence": 0.745, "pagerank": { "raw": 1.1617877435175801e-07, "percentile": 0.5842066467967824 }, "sha256": "e652f71f2f223168e0423f563a1a18b9e1e9ddfb277c2a10845b622ebc29403b", "simhash": "1:6f389c4ab0a61c82", "word_count": 2253 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and STEPHENS concur." ], "parties": [ "FREDDY L. HAYES, Administrator of the Estate of INA HAYES, Plaintiff v. PREMIER LIVING, INC., PREMIER LIVING AND REHAB, LLC, DOVE HEALTHCARE, LLC, CHAN VON HENNER, KEVIN PENNINGTON, ALLENE VON HENNER, and E. AUTRY DAWSON, SR., Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nThis is a wrongful death action arising from alleged nursing home neglect. Plaintiff is the administrator of the estate of the deceased, Ina Hayes, and is also Ms. Hayes\u2019 son. Defendants are the owners and operators of Premier Living & Rehabilitation Center (Premier Living) where Ms. Hayes resided.\nDefendants appeal the trial court order granting plaintiff\u2019s motion to compel production of three incident reports prepared by Premier Living staff and denying defendants\u2019 motion for a protective order pursuant to the peer review privilege set forth in N.C. Gen. Stat. \u00a7\u00a7 90-21.22A and 131E-107. This Court must now determine whether the trial court abused its discretion by concluding that the incident reports are not privileged. Because defendants failed to show that the reports were part of the proceedings of Premier Living\u2019s quality assurance committee, or were considered or produced by Premier Living\u2019s quality assurance committee, we hold that the trial court did not abuse its discretion by granting plaintiff\u2019s motion to compel.\nPlaintiff\u2019s complaint alleges that defendants were negligent in their care of Ms. Hayes and that defendants\u2019 negligence caused Ms. Hayes to fracture her hip and eventually resulted in her death. During discovery, plaintiff sought production of incident reports documenting several falls by Ms. Hayes at Premier Living. Although defendants identified three such reports, defendants refused to produce the reports on the basis that they are protected by the peer review privilege. On 1 December 2005, plaintiff filed a motion to compel production of the incident reports. Defendants filed a motion for a protective order on 5 January 2006.\nIncident reports are prepared by Premier Living nursing staff following \u201cunusual occurrences\u201d and document the factual circumstances surrounding each occurrence, including \u00e1 description of the incident, possible causes, and resulting injuries. In this case, defendant identified three incident reports involving Ms. Hayes during the relevant time period. The disputed incident reports were completed on 10 January 2002, 9 August 2002, and 19 August 2002.\nIn support of their motion for a protective order, defendants presented the affidavit of Linda Parnell, the administrator of Premier Living. In her affidavit, Ms. Parnell stated that Premier Living employs a \u201cContinuous Quality Improvement Team\u201d (CQI Team), which is a committee of administrators and health care providers who assess the quality of care provided to its residents. During the time Ms. Hayes resided at Premier Living, the CQI team met quarterly. Ms. Parnell also stated that the purpose of preparing incident reports is \u201cto maintain and improve the quality of care of residents at the facility.\u201d However, during her deposition, Ms. Parnell explained that individual incident reports are \u201cnot typically\u201d discussed at CQI Team meetings; rather, the team discusses \u201ctrends.\u201d The nurses who prepare incident reports are not members of the CQI Team.\nOn 9 January 2006, the trial court heard arguments on plaintiffs motion to compel and defendants\u2019 motion for a protective order, during which the court reviewed the disputed incident reports in camera. Thereafter, the court ruled that the incident reports are discoverable,' entering a written order on 12 January 2006. In its order, the trial court found that \u201c[defendants failed to produce any evidence that the incident reports (1) were part of the proceedings of its medical review committee, (2) were records and materials produced by its medical review committee, or (3) were considered by its medical review committee.\u201d Defendants appealed, arguing that the incident reports are privileged because \u201cthe purpose behind the preparation of the documents was for peer review.\u201d\n\u201cInterlocutory orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.\u201d Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). Most discovery orders are interlocutory. See Mims v. Wright, 157 N.C. App. 339, 341, 578 S.E.2d 606, 608 (2003).\n\u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Sharpe v. Worland, 315 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). However, interlocutory orders are immediately appealable if \u201cdelaying the appeal will irreparably impair a substantial right of the party.\u201d Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). An interlocutory discovery order affects a substantial right when \u201ca party asserts a statutory privilege which directly relates to the matter to be disclosed under [the order], and the assertion of such privilege is not otherwise frivolous or insubstantial.\u201d Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. Here, the interlocutory discovery order compels production of reports that may be privileged pursuant to N.C. Gen. Stat. \u00a7\u00a7 90-21.22A and 131E-107. Thus, the order affects a \u201csubstantial right\u201d and is immediately appealable to this Court.\nN.C. Gen. Stat. \u00a7\u00a7 90-21.22A and 131E-107 restrict discovery of certain materials in civil actions against providers of health care services and nursing homes respectively. Premier Living\u2019s facility in which Ms. Hayes resided is a \u201cnursing home\u201d as defined by N.C. Gen. Stat. \u00a7 131E-101(6). Specifically, N.C. Gen. Stat. \u00a7 131E-107 provides that \u201c[t]he proceedings of a quality assurance, medical, or peer review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public records . . . and shall not be subject to discovery or introduction into evidence\u201d in these actions. (Emphasis added.) The protection set forth in these sections is commonly known as the peer review privilege.\nThe peer review privilege is \u201cdesigned to encourage candor and objectivity in the internal workings of medical review committees.\u201d Shelton v. Morehead Mem\u2019l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986) (emphasis added). Whether a document is protected by the peer review privilege is determined at the time of the trial court order, see Windman v. Britthaven, Inc., 173 N.C. App. 630, 633, 619 S.E.2d 522, 524 (2005) (holding that materials produced by a nursing home review committee were not privileged because N.C. Gen. Stat. \u00a7 131E-107 was not in effect at the time the trial court filed its order compelling discovery), and the party asserting the privilege bears the burden of proof, cf. Wachovia Bank, N.A. v. Clean River Corp., 178 N.C. App. 528, 531, 631 S.E.2d 879, 882 (2006) (stating that \u201c[t]he party seeking either attorney-client privilege or work-product privilege bears the burden of proof\u2019).\n\u201cWhether or not the party\u2019s motion to compel discovery should be granted or denied is within the trial court\u2019s sound discretion and will not be reversed absent an abuse of discretion.\u201d Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. rev. denied, 336 N.C. 615, 447 S.E.2d 414 (1994). \u201cTo demonstrate an abuse of discretion, the appellant must show that the trial court\u2019s ruling was manifestly unsupported by reason, or could not be the product of reasoned decision.\u201d Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 601, 617 S.E.2d 40, 45 (2005) (internal citation omitted), aff\u2019d per curiam, 360 N.C. 356, 625 S.E.2d 779 (2006).\nHere, defendants did not present any evidence tending to show that the disputed incident reports were (1) part of the CQI team\u2019s proceedings, (2) produced by the CQI team, or (3) considered by the CQI team as required by N.C. Gen. Stat. \u00a7 131E-107. The incident reports were produced by the nurse who responded to each \u201cunusual occurrence\u201d and no nurse who produced a report was a member of the CQI Team. Although Ms. Parnell\u2019s affidavit describes the existence and mission of the CQI Team, and Ms. Parnell generally states that incident reports are intended to \u201cimprove the quality of care\u201d received by Premier Living residents, there is no evidence to show the team actually considered the reports. In fact, Premier Living\u2019s CQI team did \u201cnot typically\u201d review the incident reports.\nWe do not agree with defendants that N.C. Gen. Stat. \u00a7 131E-107 protects any and all records which may be subject to consideration by the CQI team; rather, we conclude that the plain language of section 131E-107 protects only those records which were actually a part of the team\u2019s proceedings, produced by the team, or considered by the team. We emphasize that these are substantive, not formal, requirements. Thus, in order to determine whether the peer review privilege applies, a court must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case. The title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee. See N.C. Gen. Stat. \u00a7 131E-107 (2005).\nDefendants stress that the purpose of the peer review privilege is to \u201cprotect from discovery and introduction into evidence medical review committee proceedings and related materials because of the fear that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity.\u201d Shelton, 318 N.C. at 82, 347 S.E.2d at 828 (internal quotation omitted). We agree that, through section 131E-107, the General Assembly has balanced the \u201cgoal of medical staff candor\u201d against the \u201ccost of impairing plaintiffs\u2019 access to evidence.\u201d Id. (internal quotation omitted). However, the statutory privilege codified by thie General Assembly to protect this public interest extends only to three limited classes of documents, none of which are present in the case sub judice.\nFor the reasons stated above, we hold that the trial court did not abuse its discretion by granting plaintiffs motion to compel production of the three disputed incident reports and denying defendants\u2019 motion for a protective order. Defendants\u2019 assertion that the CQI team could have reviewed the incident reports and may do so in the future is insufficient to show that the reports are material that is privileged by N.C. Gen. Stat. \u00a7\u00a7 90-21.22A and 131E-107. The trial court\u2019s order is affirmed.\nAFFIRMED.\nJudges TYSON and STEPHENS concur.\n. Although the trial court referred to the CQI Team as a \u201cmedical review\u201d committee in its order, it appears that the CQI Team is actually a \u201cquality, assurance\u201d committee as defined by N.C. Gen. Stat. \u00a7 131E-101(8). However, for both types of committee, certain documents relating to the team are potentially protected by N.C. Gen. Stat. \u00a7 131E.\n. We further emphasize that N.C. Gen. Stat. \u00a7 131E-107 also provides that \u201cinformation, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee. Documents otherwise available as public records within the meaning of G.S. 132-1 do not lose their status as public records merely because they were presented or considered during proceedings of the committee.\u201d", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Yates, Mclamb & Weyher, L.L.P., by Michael C. Hurley and Christopher M. West, for defendant-appellants.", "Gugenheim Law Offices, P.C., by Stephen J. Gugenheim, for plaintiff-appellee." ], "corrections": "", "head_matter": "FREDDY L. HAYES, Administrator of the Estate of INA HAYES, Plaintiff v. PREMIER LIVING, INC., PREMIER LIVING AND REHAB, LLC, DOVE HEALTHCARE, LLC, CHAN VON HENNER, KEVIN PENNINGTON, ALLENE VON HENNER, and E. AUTRY DAWSON, SR., Defendants\nNo. COA06-661\n(Filed 20 February 2007)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 substantial right\nAn order granting plaintiffs motion to compel discovery and denying defendants\u2019 motion for a protective order affects a substantial right and is immediately appealable because: (1) an interlocutory discovery order affects a substantial right when a party asserts a statutory privilege which directly relates to the matter to be disclosed under the order, and the assertion of such privilege is not otherwise frivolous or insubstantial; and (2) the pertinent interlocutory discovery order compels production of reports that may be privileged under N.C.G.S. \u00a7\u00a7 90-21.22A and 131E-107.\n2. Discovery\u2014 incident reports \u2014 motion to compel production \u2014 peer review privilege\nThe trial court did not abuse its discretion in a wrongful death action arising from alleged nursing home neglect by granting plaintiffs motion to compel production of the three disputed incident reports and by denying defendants\u2019 motion for a protective order pursuant to the peer review privilege set forth under N.C.G.S. \u00a7\u00a7 90-21.22A and 131E-107, because: (1) defendants failed to show that the reports were part of the proceedings of defendants\u2019 quality assurance committee; (2) the incident reports were produced by the nurse who responded to each unusual occurrence, and no nurse who produced a report was a member of a quality assurance team; (3) there was no evidence to show the team actually considered the reports, and the team typically did not review the reports; (4) N.C.G.S. \u00a7 131E-107 protects only those records which were actually a part of the team\u2019s proceedings, produced by the team, or considered by the team; (5) the title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee; and (6) the statutory privilege codified by the General Assembly to protect the public interest of balancing the goal of medical staff candor against the cost of impairing plaintiffs\u2019 access to evidence extends only to three limited classes of documents, none of which are present in the instant case.\nAppeal pursuant to N.C. Gen. Stat. \u00a7 7A-27(d) from the order granting plaintiff\u2019s motion to compel and denying defendants\u2019 motion for a protective order, entered 12 January 2006 by Judge Ola M. Lewis in Superior Court, Columbus County. Heard in the Court of Appeals 10 January 2007.\nYates, Mclamb & Weyher, L.L.P., by Michael C. Hurley and Christopher M. West, for defendant-appellants.\nGugenheim Law Offices, P.C., by Stephen J. Gugenheim, for plaintiff-appellee." }, "file_name": "0747-01", "first_page_order": 779, "last_page_order": 785 }