{ "id": 8375955, "name": "GEORGE G. CUNNINGHAM EXECUTOR OF THE ESTATE OF CHRISTINE B. CUNNINGHAM, DECEASED, Plaintiff v. CHARLES A. CANNON, JR. MEMORIAL HOSPITAL, INCORPORATED, DIAMOND HEALTHCARE CORPORATION, AND DAVID CLEO COOK, M.D., Defendants", "name_abbreviation": "Cunningham v. Cannon", "decision_date": "2007-12-18", "docket_number": "No. COA06-1532", "first_page": "732", "last_page": "739", "citations": [ { "type": "official", "cite": "187 N.C. App. 732" } ], "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": "621 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634275, 12634276, 12634277 ], "year": 2005, "pin_cites": [ { "parenthetical": "allowing interlocutory appeal of discovery order based on privileges asserted under N.C. Gen. Stat. \u00a7 90-21.22" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0173-01", "/se2d/621/0173-02", "/se2d/621/0173-03" ] }, { "cite": "614 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633138 ], "year": 2005, "pin_cites": [ { "parenthetical": "allowing interlocutory appeal of discovery order based on privileges asserted under N.C. Gen. Stat. \u00a7 90-21.22" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0371-01" ] }, { "cite": "568 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250465 ], "year": 2002, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0452-01" ] }, { "cite": "358 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "116" }, { "page": "115" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132874 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "427" }, { "page": "426" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0425-01" ] }, { "cite": "347 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1986, "pin_cites": [ { "page": "831" }, { "page": "829" }, { "page": "829" }, { "page": "829" }, { "page": "828" }, { "page": "829" }, { "page": "831" } ], "opinion_index": 0 }, { "cite": "318 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737744 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "87" }, { "page": "83" }, { "page": "83" }, { "page": "83-84" }, { "page": "81" }, { "page": "82-83" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0076-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "holding interlocutory discovery orders affect a substantial right when a statutory privilege directly related to the matter to be disclosed is asserted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "parenthetical": "holding interlocutory discovery orders affect a substantial right when a statutory privilege directly related to the matter to be disclosed is asserted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "360 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788768, 3797185, 3792645, 3792391, 3791370, 3790892, 3791181, 3789709, 3794291, 3790036, 3789205, 3788855 ], "year": 2005, "pin_cites": [ { "parenthetical": "allowing interlocutory appeal of discovery order based on privileges asserted under N.C. Gen. Stat. \u00a7 90-21.22" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0479-05", "/nc/360/0060-05", "/nc/360/0068-02", "/nc/360/0060-06", "/nc/360/0060-08", "/nc/360/0060-02", "/nc/360/0060-04", "/nc/360/0060-09", "/nc/360/0060-01", "/nc/360/0060-07", "/nc/360/0060-03", "/nc/360/0490-05" ] }, { "cite": "171 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436567 ], "year": 2005, "pin_cites": [ { "parenthetical": "allowing interlocutory appeal of discovery order based on privileges asserted under N.C. Gen. Stat. \u00a7 90-21.22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0287-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "year": 2005, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 586, "char_count": 16819, "ocr_confidence": 0.757, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33346461511848763 }, "sha256": "078af3b2d1f677fec66006951619f602e0a234601f04ee40fb2347f68c475d90", "simhash": "1:4ff0bd6e34da16f3", "word_count": 2592 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GEER concurs.", "Judge JACKSON concurs in a separate opinion." ], "parties": [ "GEORGE G. CUNNINGHAM EXECUTOR OF THE ESTATE OF CHRISTINE B. CUNNINGHAM, DECEASED, Plaintiff v. CHARLES A. CANNON, JR. MEMORIAL HOSPITAL, INCORPORATED, DIAMOND HEALTHCARE CORPORATION, AND DAVID CLEO COOK, M.D., Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nDefendant David Cleo Cook, M.D. (\u201cDr. Cook\u201d) appeals from an order of the trial court denying in part his motion for a protective order and granting in part George G. Cunningham, Executor of the Estate of Christine B. Cunningham\u2019s (\u201cplaintiff\u2019) motion to compel. We affirm.\nOn 31 May 2004, Christine B. Cunningham (\u201cMrs. Cunningham\u201d), plaintiff\u2019s wife and decedent, attempted suicide. Mrs. Cunningham was involuntarily committed to the Watauga Medical Center on 1 June 2004 where she received treatment. Mrs. Cunningham was transferred to the Charles A. Cannon, Jr. Memorial Hospital, Incorporated (\u201cCannon Memorial\u201d) on 1 June 2004. That same day, Mrs. Cunningham was placed on one-on-one constant observation and was placed under suicide precautions. On 3 June 2004, at 12:18 p.m., Dr. Cook changed Mrs. Cunningham\u2019s observation status from one-on-one to \u201cclose.\u201d At 3:30 p.m., a nurse found Mrs. Cunningham in the bathroom hanging by her neck and reported that Mrs. Cunningham was unresponsive. On 4 June 2004, the following day, Mrs. Cunningham died as a result of the injuries sustained from the previous day\u2019s incident.\nOn 3 October 2005, plaintiff filed an action against Dr. Cook, Cannon Memorial and Diamond Healthcare Corporation (\u201cDiamond\u201d) alleging medical negligence of each party. On 1 February 2006, Dr. Cook filed a Motion for Protective Order to prohibit plaintiff from seeking discovery of privileged and confidential information. On 24 May 2006, Wilkes County Superior Court Judge Anderson D. Cromer (\u201cJudge Cromer\u201d) entered an order granting Dr. Cook\u2019s motion as to certain interrogatories regarding information otherwise produced during the course of peer review activities or while participating in any agreements made pursuant to N.C. Gen. Stat. \u00a7 90-21.22 (2005). Judge Cromer denied Dr. Cook\u2019s motion for a protective order in part and granted plaintiff\u2019s motion to compel as to Dr. Cook\u2019s alleged substance abuse and limitations on his ability to practice medicine. Judge Cromer further ordered that a prior order entered by the Georgia Board of Medical Examiners (\u201cGBME order\u201d) was discoverable and portions of Dr. Cook\u2019s application for privileges with Cannon Memorial that were submitted to the North Carolina Department of Health and Human Services (\u201cDHHS\u201d) were discoverable. Dr. Cook appeals.\nInitially we note that although Dr. Cook\u2019s appeal is interlocutory, appeals from discovery orders have been held to affect a substantial right when a privilege under N.C. Gen. Stat. \u00a7 90-21.22 has been asserted. See Armstrong v. Barnes, 171 N.C. App. 287, 614 S.E.2d 371, review denied, 360 N.C. 60, 621 S.E.2d 173 (2005) (allowing interlocutory appeal of discovery order based on privileges asserted under N.C. Gen. Stat. \u00a7 90-21.22); Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999) (holding interlocutory discovery orders affect a substantial right when a statutory privilege directly related to the matter to be disclosed is asserted). Because Dr. Cook asserts that the matters to be disclosed are privileged under N.C. Gen. Stat. \u00a7 90-21.22, a substantial right is affected.\nI. The Georgia Order\nDr. Cook argues the trial court erred in denying his motion for a protective order with respect to the GBME order because the information pertained to a Physicians Health Program and is privileged under N.C. Gen. Stat. \u00a7 90-21.22. We disagree.\nPursuant to N.C. Gen. Stat. \u00a7 90-21.22 (2005), \u201c[a]ny confidential patient information and other nonpublic information acquired, created, or used in good faith by the Academy or a society pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case.\" Id. (emphasis added). Nonpublic information is information that is not accessible to or shared by all members of the community. Sharpe, 137 N.C. App. at 88, 527 S.E.2d at 79. The GBME order provides \u201cthis Consent Order, once approved, shall contitute [sic] a public record which may be disseminated as a disciplinary action of the Board.\u201d Therefore, Dr. Cook voluntarily entered into the consent order with the full understanding that it would become public record and the GBME Order is not privileged pursuant to N.C. Gen. Stat. \u00a7 90-21.22 and is discoverable because it is a public record.\nII. The Application for Privileges\nDefendant next argues the trial court erred by denying his motion for protective order with respect to his application for hospital privileges. We disagree.\nNorth Carolina General Statutes \u00a7 131E-95 provides:\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 \u201c \u2018Public records\u2019 defined\u201d, and shall not be subject to discovery or introduction into evidence in any civil action against a hospital, an ambulatory surgical facility licensed under Chapter 13 IE of the General Statutes, or a provider of professional health services which results from matters which are the subject of evaluation and review by the committee.\nN.C. Gen. Stat. \u00a7 131E-95(b) (2005). Under N.C. Gen. Stat. \u00a7 131E-76(5) (2005), a \u201cmedical review committee\u201d is defined to include a committee responsible for \u201cmedical staff credentialing.\u201d\nIn Shelton v. Morehead Memorial Hosp., 318 N.C. 76, 87, 347 S.E.2d 824, 831 (1986), our Supreme Court determined the purpose of N.C. Gen. Stat. \u00a7 131E-95(b) is to promote medical staff candor and medical review committee objectivity. Shelton, 318 N.C. at 83, 347 S.E.2d at 829; See also Whisenhunt v. Zammit, 86 N.C. App. 425, 427, 358 S.E.2d 114, 116 (1987). The statute accomplishes this purpose by providing a broad privilege that protects \u201ca medical review committee\u2019s (1) proceedings; (2) records and materials it produces; and (3) materials it considers.\u201d Shelton, 318 N.C. at 83, 347 S.E.2d at 829. The statute also accomplishes a balance between this broad privilege and the interest of allowing reasonable discovery by permitting \u201caccess to information not generated by the committee itself but merely presented to it....\u201d Id. Therefore, the privilege referenced in the statute does not extend to \u201cinformation . . . available[] from original sources other than the medical review committee . . . merely because it was presented during medical review committee proceedings[,]\u201d and the statute\u2019s purpose is not violated by allowing materials otherwise available to \u201cbe discovered and used in evidence even though they were considered by [a] medical review committee.\u201d Id., 318 N.C. at 83-84, 347 S.E.2d at 829.\nIn Shelton, the plaintiffs sought discovery from the defendant hospital\u2019s medical review committee records and information regarding the review proceedings with respect to the defendant doctor. Id., 318 N.C. at 81, 347 S.E.2d at 828. Similarly, the plaintiffs in Whisenhunt sought discovery from a hospital of its \u201ccredentialing records\u201d concerning the defendant doctor. Whisenhunt, 86 N.C. App. at 426, 358 S.E.2d at 115. Each decision held that the information sought was not discoverable because the plain language of N.C. Gen. Stat. \u00a7 131E-95(b) extends a statutory privilege to the records produced by a medical review committee and the information concerning its proceedings. Shelton, 318 N.C. at 82-83, 347 S.E.2d at 829; Whisenhunt, 86 N.C. App. at 428, 368 S.E.2d at 116.\nDefendant argues N.C. Gen. Stat. \u00a7 131E-95 applies to his application for privileges because it was \u201cgenerated at the instance of the Cannon Credentialing Committee\u201d and, therefore, is privileged. More specifically, defendant contends our Supreme Court\u2019s statement in Shelton, 318 N.C. at 87, 347 S.E.2d at 831, that \u201c[s]ection [131E-] 95 offers no protection to the records and documents furnished by the individual physicians in their applications for hospital privileges\u201d is inapplicable because the Supreme Court was \u201creferring to documents presented to a medical review committee as part of the application process and not the application itself.\u201d However, \u00a7 131E-95 applies to the information generated by a medical review committee. Here, the information that defendant contends is privileged was not information generated, but information that defendant provided to Cannon Memorial in his application for hospital privileges. We believe the Legislature\u2019s purpose in enacting \u00a7 131E-95 was to protect \u201cinformation produced pursuant to peer review statutes like [\u00a7 131E-95].\u201d Sharpe, 137 N.C. App. at 88, 527 S.E.2d at 79. Regardless of its form, the information sought by plaintiff was generated by defendant, not the Cannon Credentialing Committee. Therefore, the information is discoverable and the trial court did not abuse its discretion in denying defendant\u2019s motion for a protective order.\nIII. Discovery\nDefendant\u2019s final argument is that the information sought within the GBME Order and the Application for Privileges is not discoverable because it is privileged: \u201cWhether or not to grant a party\u2019s motion to compel discovery is in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.\u201d Belcher v. Averette, 152 N.C. App. 452, 455, 568 S.E.2d 630, 633 (2002). Pursuant to Rule 26 of the North Carolina Rules of Civil Procedure, \u201c[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[.]\u201d We have determined that both items sought by plaintiff are not privileged. Furthermore, the information contained in the Georgia Order and the Application for Privileges provides information related to defendant\u2019s history of drug and alcohol abuse. The trial court\u2019s decision to grant plaintiffs motion to compel discovery was not an abuse of discretion.\nFor the foregoing reasons, the order of the trial court is affirmed.\nAffirmed.\nJudge GEER concurs.\nJudge JACKSON concurs in a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "JACKSON, Judge,\nconcurring.\nAlthough I concur with the majority opinion, I write separately to express my opinion that on the issue of Dr. Cook\u2019s credentialing application, we need go no further than Chapter 13 IE to reach our conclusion.\nAlthough North Carolina General Statutes, section 131E-95(b) prohibits discovery of medical review committee meetings, the records and materials it produces, and the materials it considers,\ninformation, 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.\nN.C. Gen. Stat. \u00a7 131E-95(b) (2005) (emphasis added).\nHere, plaintiff sought information pertaining to whether Dr. Cook had ever (1) had his license to practice medicine revoked, suspended, limited, or denied, either voluntarily or involuntarily; (2) had his hospital privileges revoked, suspended, or in any way limited; (3) had his privileges to prescribe medications, including narcotics, revoked, suspended, or limited, either voluntarily or involuntarily; or (4) been subject to an investigation or disciplinary action. This information was otherwise available from several sources other than his application for privileges at Cannon Memorial Hospital.\nAs the trial court noted, the information was known to Dr. Cook, himself. In addition, pursuant to the consent order entered into between Dr. Cook and the Georgia Board of Medical Examiners, it was a matter of public record that Dr. Cook was the subject of a disciplinary action limiting his ability to practice medicine and prescribe medications in Georgia. Further, separate and apart from his application was a letter in the public files of D.H.H.S. in which Dr. Cook indicated that he had been the subject of disciplinary proceedings, had his ability to prescribe medications limited, and had his license to practice limited.\nBecause the information sought was otherwise available, it was discoverable, rather than the fact that, as the majority suggests, it was generated by defendant.", "type": "concurrence", "author": "JACKSON, Judge," } ], "attorneys": [ "Pulley, Watson, King & Lischer, by Richard N. Watson, for plaintiff-appellee.", "Carruthers & Roth, P.A., by Richard L. Vanore, Norman F. Klick, Jr. and Robert N. Young, for defendant-appellant." ], "corrections": "", "head_matter": "GEORGE G. CUNNINGHAM EXECUTOR OF THE ESTATE OF CHRISTINE B. CUNNINGHAM, DECEASED, Plaintiff v. CHARLES A. CANNON, JR. MEMORIAL HOSPITAL, INCORPORATED, DIAMOND HEALTHCARE CORPORATION, AND DAVID CLEO COOK, M.D., Defendants\nNo. COA06-1532\n(Filed 18 December 2007)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 discovery order \u2014 privilege\u2014substantial right\nAlthough defendant doctor appeals from an interlocutory discovery order of the trial court denying in part his motion for a protective order and granting in part plaintiff executor\u2019s motion to compel, defendant has a right to an immediate appeal because: (1) appeals from discovery orders have been held to affect a substantial right when a privilege under N.C.G.S. \u00a7 90-21.22 has been asserted; and (2) defendant asserted that the matters to be disclosed were privileged under N.C.G.S. \u00a7 90-21.22.\n2. Discovery; Medical Malpractice\u2014 Physicians Health Program \u2014 substance abuse \u2014 motion for protective order \u2014 voluntary consent order \u2014 public record \u2014 disciplinary action\nThe trial court did not abuse its discretion in a medical negligence case by denying in part defendant doctor\u2019s motion for a protective order with respect to the Georgia Board of Medical Examiners (GBME) order regarding defendant\u2019s alleged substance abuse even though defendant argued it contained information pertaining to a Physicians Health Program and was privileged under N.C.G.S. \u00a7 90-21.22, because: (1) although N.C.G.S. \u00a7 90-21.22 provides that any confidential patient information and other nonpublic information acquired, created, or used in good faith by the Academy or a society under this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case, the GBME order provided that the consent order, once approved, shall constitute a public record which may be disseminated as a disciplinary action of the Board; and (2) defendant voluntarily entered into the consent order with the full understanding that it would become public record, and the GBME order was not privileged under N.C.G.S. \u00a7 90-21.22 and was discoverable since it was a public record.\n3. Discovery; Medical Malpractice\u2014 motion for protective order \u2014 application for hospital privileges \u2014 limitations on ability to practice medicine\nThe trial court did not abuse its discretion in a medical negligence case by denying in part defendant doctor\u2019s motion for a protective order with respect to his application for hospital privileges showing defendant\u2019s limitations on his ability to practice medicine, because: (1) the privilege referenced in N.C.G.S. \u00a7 131E-95 does not extend to information available from original sources other than the medical review committee merely based on it being presented during medical review committee proceedings, and the statute\u2019s purpose is not violated by allowing , materials otherwise available to be discovered and used in evidence even though they were considered by a medical review committee; and (2) the information sought by plaintiff was generated by defendant, not the Cannon Credentialing Committee, and thus the information was discoverable.\n4. Discovery; Medical Malpractice\u2014 motion to compel \u2014 doctor\u2019s substance abuse and limitations on ability to practice medicine\nThe trial court did not abuse its discretion in a medical negligence case by granting in part plaintiff executor\u2019s motion to compel discovery regarding defendant doctor\u2019s substance abuse and limitations on his ability to practice medicine, because: (1) N.C.G.S. \u00a7 1A-1, Rule 26 provides that parties 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; and (2) the Court of Appeals determined that both items sought by plaintiff were not privileged, and the information contained in a Georgia order and the application for hospital privileges provided information related to defendant\u2019s history of drug and alcohol abuse.\nJudge JACKSON concurring in a separate opinion.\nAppeal by defendant David Cleo Cook, M.D. from order entered 24 May 2006 by Judge Anderson D. Cromer in Wilkes County Superior Court. Heard in the Court of Appeals 6 June 2007.\nPulley, Watson, King & Lischer, by Richard N. Watson, for plaintiff-appellee.\nCarruthers & Roth, P.A., by Richard L. Vanore, Norman F. Klick, Jr. and Robert N. Young, for defendant-appellant." }, "file_name": "0732-01", "first_page_order": 762, "last_page_order": 769 }