{ "id": 4174297, "name": "THE NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Plaintiff v. E. JEAN WOODS, D.D.S., Defendant", "name_abbreviation": "North Carolina State Board of Dental Examiners v. Woods", "decision_date": "2010-01-19", "docket_number": "No. COA09-341", "first_page": "89", "last_page": "99", "citations": [ { "type": "official", "cite": "202 N.C. App. 89" } ], "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": "635 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636799 ], "year": 2006, "pin_cites": [ { "page": "481", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0477-01" ] }, { "cite": "628 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635483 ], "year": 2006, "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0001-01" ] }, { "cite": "643 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638283 ], "year": 2007, "pin_cites": [ { "page": "907", "parenthetical": "citing Diaz v. Division of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0904-01" ] }, { "cite": "669 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642338 ], "year": 2008, "pin_cites": [ { "page": "847", "parenthetical": "citing Embler v. Embler, 143 N.C. App. 162, 164-65, 545 S.E.2d 259, 261 (2001)" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0844-01" ] }, { "cite": "668 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642154 ], "year": 2008, "pin_cites": [ { "page": "116", "parenthetical": "quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0114-01" ] }, { "cite": "7 Misc. 3d 933", "category": "reporters:state", "reporter": "Misc. 3d", "case_ids": [ 1187387 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/misc3d/7/0933-01" ] }, { "cite": "851 A.2d 595", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "704-05" } ], "opinion_index": 0 }, { "cite": "381 Md. 676", "category": "reporters:state", "reporter": "Md.", "year": 2004, "opinion_index": 0 }, { "cite": "155 Md. App. 687", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 1204125 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/md-app/155/0687-01" ] }, { "cite": "45 C.F.R. \u00a7 164.501", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 2009, "opinion_index": 0 }, { "cite": "45 C.F.R. \u00a7 164.502", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "731 N.W.2d 91", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 2007, "opinion_index": 0 }, { "cite": "478 Mich. 854", "category": "reporters:state", "reporter": "Mich.", "year": 2007, "opinion_index": 0 }, { "cite": "736 N.W.2d 594", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 7, "year": 2007, "pin_cites": [ { "page": "597", "parenthetical": "citing 45 C.F.R. 164.502-164.534" }, { "page": "700" }, { "page": "597-98" }, { "page": "700-01" }, { "page": "598", "parenthetical": "citations and quotations omitted" }, { "page": "599", "parenthetical": "quoting 45 C.F.R. 164.512(e)(vi)(2)" } ], "opinion_index": 0 }, { "cite": "274 Mich. App. 696", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 3462275 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "699", "parenthetical": "citing 45 C.F.R. 164.502-164.534" }, { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/mich-app/274/0696-01" ] }, { "cite": "548 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "516-18" } ], "opinion_index": 0 }, { "cite": "353 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135857 ], "year": 2001, "pin_cites": [ { "page": "663-65" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0659-01" ] }, { "cite": "143 L. Ed. 2d 671", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1098", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11178628, 11178790, 11178507, 11178542, 11178897, 11178867, 11178836, 11178709, 11178675, 11178586, 11178751 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1098-04", "/us/526/1098-08", "/us/526/1098-01", "/us/526/1098-02", "/us/526/1098-11", "/us/526/1098-10", "/us/526/1098-09", "/us/526/1098-06", "/us/526/1098-05", "/us/526/1098-03", "/us/526/1098-07" ] }, { "cite": "507 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "349 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571505 ], "year": 1998, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0290-01" ] }, { "cite": "589 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "181", "parenthetical": "citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 663-65, 548 S.E.2d 513, 516-18 (2001)" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959285 ], "year": 2003, "pin_cites": [ { "page": "560", "parenthetical": "citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 663-65, 548 S.E.2d 513, 516-18 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0558-01" ] }, { "cite": "179 N.C. App. 780", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239561 ], "year": 2006, "pin_cites": [ { "page": "786", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0780-01" ] }, { "cite": "136 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "parenthetical": "allowing immediate appellate review for plaintiff asserting the physician-patient privilege after the trial court's interlocutory order, which granted defendants' motion to compel plaintiff's psychiatrist to submit to a deposition regarding plaintiff's medical treatment history" } ], "opinion_index": 0 }, { "cite": "261 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575547 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0754-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "805" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "597 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491577 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0569-01" ] }, { "cite": "578 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "638", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 258", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186032 ], "year": 2003, "pin_cites": [ { "page": "261", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0258-01" ] }, { "cite": "360 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789468 ], "year": 2006, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0384-01" ] }, { "cite": "361 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3740769 ], "year": 2007, "pin_cites": [ { "page": "322", "parenthetical": "citing Diaz v. Division of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0318-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-41.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "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": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "579", "parenthetical": "alterations omitted" }, { "page": "581" }, { "page": "580-81" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "162", "parenthetical": "alterations omitted" }, { "page": "166" }, { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "year": 2001, "pin_cites": [ { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "45 C.F.R. \u00a7 164.512", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 12, "pin_cites": [ { "page": "(d)" }, { "page": "(d)(1)" }, { "page": "(d)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(e)" }, { "page": "(e)(l)(v)" }, { "page": "(d)(1)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 847, "char_count": 22404, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13681492627562455 }, "sha256": "27c459bf8af8be6e6750c933ec47db805d8a75a4a617c546cc9e5020592753bb", "simhash": "1:834196745f2c24fe", "word_count": 3563 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and JACKSON concur." ], "parties": [ "THE NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Plaintiff v. E. JEAN WOODS, D.D.S., Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nAppellant has failed to demonstrate that the trial court\u2019s order quashing her notices of deposition and subpoenas affected a substantial right, and the appeal of that order is dismissed. Appellant\u2019s assertion of privilege pursuant to HIPAA does affect a substantial right and is subject to immediate appellate review. The subpoenas of the Dental Board for patient records pursuant to a disciplinary investigation are permitted pursuant to HIPAA Regulations, under the provisions of 45 C.F.R. \u00a7 164.512(d).\nI. Factual and Procedural Background\nIn November 2007, the North Carolina State Board of Dental Examiners (Dental Board) received a complaint concerning treatment provided by Dr. E. Jean Woods (Woods), to a minor child. Subsequently, the Dental Board received a complaint from an individual claiming that Woods \u201ccouldn\u2019t stop using drugs.\u201d When a complaint is received, the Dental Board goes through a two-step process: (1) conduct a investigation to see if there is validity to the complaint, and (2) if the complaint is found to be valid, conduct a disciplinary hearing. The two complaints against Woods were combined and assigned to an Investigative Panel of the Dental Board. The Investigative Panel conducted a pharmacy audit, which raised questions concerning whether Woods prescribed controlled substances in excessive amounts and whether she prescribed medication to treat conditions outside the scope of the practice of dentistry.\nOn 2 April 2008, the Dental Board issued a subpoena pursuant to N.C. Gen. Stat. \u00a7 90-27 directing Woods to produce twenty patient records. On 24 April 2008, Woods filed a motion in superior court pursuant to Rule 45(c) of the North Carolina Rules of Civil Procedure to quash the subpoena. On 8 May 2008, the trial court denied the motion-. On 12 May 2008, Woods filed the same motion to quash the subpoena with the Dental Board. On 25 June 2008, the Dental Board denied the motion.\nOn 25 July 2008, Woods filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings (OAH) asserting that the Dental Board\u2019s denial of her motion to quash the subpoena substantially prejudiced her rights, failed to use the proper procedures, and failed to act as required by law. She contended that her patients\u2019 records were private, and the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. \u00a7 1320d el seq., prohibited their disclosure. On 31 July 2008, OAH filed a \u201cNotice of Contested Case and Assignment.\u201d On 4 August 2008, the Dental Board moved to dismiss Woods\u2019 petition because the matter was still in the investigative stage, no formal proceeding was pending, and the matter was not properly before OAH.\nOn 13 August 2008, Woods served notices of deposition and subpoenas to the Dental Board, its President, and its Secretary-Treasurer. On 14 August 2008, Woods received a second subpoena from the Dental Board, which requested twenty-one patient records; the original twenty records plus one additional patient record. On 15 August 2008, Woods filed a motion to quash the second subpoena with the Dental Board.\nOn 20 August 2008, the Investigative Panel filed a motion with the Dental Board to quash the subpoenas and the notices of deposition issued by Woods, asserting that Woods was not entitled to conduct discovery during the investigative stage of the matter. At the hearing on the motion to quash the subpoenas, Woods withdrew the challenged notices of deposition and subpoenas. On 9 September 2008, the Dental Board denied the Investigative Panel\u2019s motion as being moot.\nAlso, on 9 September 2008, the Dental Board denied Woods\u2019 motion to quash the second subpoena. On 16 September 2008, Woods filed a Petition for a Contested Case Hearing with OAH asserting that the Dental Board\u2019s denial of her motion to quash the second subpoena substantially prejudiced her rights, failed to use the proper procedures, and failed to act as required by law. She also filed a document styled as \u201cMotion to Consolidate, Motion to Compel, and Stay\u201d seeking to consolidate her two petitions on the original and second subpoenas, to compel the Dental Board, its President, and its Secretary-Treasurer to present themselves for deposition, and to stay the Dental Board from issuing subpoenas. On 22 September 2008, the Dental Board filed a motion with OAH to dismiss Woods\u2019 petitions and her motion to consolidate, compel, and stay.\nOn 25 September 2008, the Dental Board filed a motion in superior court seeking an order to enforce the original and second subpoenas issued to Woods for her patient records. On 27 October 2008, Woods served the Dental Board, its President, and its Secretary-Treasurer, with new subpoenas and notices of deposition. On 31 October 2008, the Dental Board filed a motion in superior court to quash the subpoenas and notices of deposition served 27 October, again asserting that Woods was not entitled to conduct discovery during the investigative stage of the matter.\nOn 6 November 2008, Woods appealed to the superior court from the Dental Board\u2019s 25 June and 9 September 2008 orders denying her motions to quash the subpoenas for her patient records. On 14 November 2008, Administrative Law Judge Shannon R. Joseph entered an order granting the Dental Board\u2019s 4 August and 22 September 2008 motions to dismiss Woods\u2019 petitions for lack of jurisdiction.\nOn 28 November 2008, Woods filed a motion in superior court to compel the Dental Board, its President, and its Secretary-Treasurer, to submit to depositions. On 2 January 2009, Judge Cashwell entered orders granting the Dental Board\u2019s motion to enforce the subpoenas for the patient records, granting the Dental Board\u2019s motion to quash the notices of deposition and subpoenas issued by Woods, and dismissing Woods\u2019 appeal from the Dental Board\u2019s orders denying her motions to quash the subpoenas for her patient records.\nFrom the two orders entered by Judge Cashwell on 2 January 2009, Woods appeals.\nII. Interlocutory Appeal\nWe must first address the Dental Board\u2019s argument that Woods\u2019 appeal should be dismissed as interlocutory.\nWoods contends that she is entitled to appellate review from the orders of the trial court pursuant to N.C. Gen. Stat. \u00a7 7A-27. The Dental Board contends that Woods\u2019 appeal is interlocutory because the orders are not final judgments in the matter.\n\u201c \u2018An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u2019 \u201d Edwards v. GE Lighting Systems, Inc., - N.C. App.-,-, 668 S.E.2d 114, 116 (2008) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Interlocutory orders are \u201cimmediately appealable in only two instances: (1) if the trial court certifies that there is no just reason to delay the appeal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) or (2) when the challenged order affects a substantial right the appellant would lose without immediate review.\u201d Wiggs v. Peedin,-N.C. App.-,-, 669 S.E.2d 844, 847 (2008) (citing Embler v. Embler, 143 N.C. App. 162, 164-65, 545 S.E.2d 259, 261 (2001)).\nIn the instant case, the trial court\u2019s discovery orders are interlocutory because they do not \u201c \u2018dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy.\u2019 \u201d Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (alterations omitted) (quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)). There was no Rule 54(b) certification; and our review is limited to whether a substantial right is affected.\nA. Trial Court\u2019s Order Granting the Dental Board\u2019s Motion to Quash Woods\u2019 Notices of Deposition and Subpoenas\nIn her first argument, Woods contends that the trial court erred by quashing the notices of deposition and subpoenas she served upon the Dental Board, its President, and its Secretary-Treasurer, because she is entitled to conduct discovery pursuant to N.C. Gen. Stat. \u00a7 90-41.1.\nArticle 2 of Chapter 90 of the General Statutes governs the practice of dentistry in North Carolina, and establishes the Board of Dental Examiners to regulate that profession. N.C. Gen. Stat. \u00a7 90-22 (2007). Disciplinary proceedings are governed by N.C. Gen. Stat. \u00a7\u00a7\u00a7 90-41, 90-41.1 and 90-42. N.C. Gen. Stat. \u00a7 90-41.1 provides:\n(c) Following the service of the notice of hearing as required by Chapter 150B of the General Statutes, the Board and the person upon whom such notice is served shall have the right to conduct adverse examinations, take depositions, and engage in such further discovery proceedings as are permitted by the laws of this State in civil matters. The Board is hereby authorized and empowered to issue such orders, commissions, notices, subpoenas, or other process as might be necessary or proper to effect the purposes of this subsection; provided, however, that no member of the Board shall be subject to examination hereunder.\nN.C. Gen. Stat. \u00a7 90-41.1(c) (2007). When the terms of a statute are clear and unambiguous, this Court is to apply the plain meaning of the words, with no need to resort to judicial construction. Wiggs v. Edgecombe Cty., 361 N.C. 318, 322, 643 S.E.2d 904, 907 (2007) (citing Diaz v. Division of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)). The terms of the statute do not permit a defendant to engage in discovery until the Dental Board files a notice of hearing. Further, the Administrative Procedures Act does not permit one to engage in formal discovery while an agency is still investigating the merits of a complaint. N.C. Gen. Stat. \u00a7 150B-39 (2007).\nIn the instant case, no notice of hearing has been filed, and the matter is still under investigation. Woods cannot, by filing motions in superior court, create an action in which to conduct discovery.\nThe terms of N.C. Gen. Stat, \u00a7 90-41.1(c) are clear and unambiguous. Because no proceeding has been filed against Woods, she was not entitled to engage in discovery. Thus, no substantial right of Woods is affected. Woods\u2019 appeal from the order granting the Dental Board\u2019s motion to quash her notices of deposition and subpoenas is dismissed.\nB. Trial Court\u2019s Order Granting the Dental Board's Motion to Enforce the Investigative Panel\u2019s Subpoenas for Woods\u2019 Patient Records\nIn her second argument, Woods contends that the trial court erred by granting the Dental Board\u2019s motion to enforce the Investigative Panel\u2019s subpoenas for Woods\u2019 patient records because the records are privileged documents, which she is prohibited from disclosing under HIPAA. See 42 U.S.C. \u00a7 1320d et seq.\n\u201cAn order regarding discovery matters is generally not immediately appealable because it is interlocutory and does not affect a substantial right that would be lost if the ruling were not reviewed before final judgment.\u201d In re Will of Johnston, 157 N.C. App. 258, 261, 578 S.E.2d 635, 638 (2003) (citations omitted), aff\u2019d, 357 N.C. 569, 597 S.E.2d 670 (2003). However, when 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 under N.C. Gen. Stat. \u00a7\u00a7 l-277(a) and 7A-27(d)(l). Sharpe, 351 N.C. at 166, 522 S.E.2d at 581.\nDefendant asserts a statutory privilege based upon HIPAA. See 42 U.S.C. \u00a7 1320d et seq. \u201c[I]n determining whether a substantial right is affected by the challenged order, it suffices to observe that, if [Woods] is required to disclose the very documents that [she] alleges are protected from disclosure by the statutory privilege, then \u2018a right materially affecting those interests which a [person] is entitled to have preserved and protected by law\u2019 \u2014 a \u201csubstantial right\u201d \u2014 is affected.\u201d Sharpe, 351 N.C. at 164-65, 522 S.E.2d at 580-81 (quoting Oestreicher v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)); see also Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964) (allowing immediate appellate review for plaintiff asserting the physician-patient privilege after the trial court\u2019s interlocutory order, which granted defendants\u2019 motion to compel plaintiff\u2019s psychiatrist to submit to a deposition regarding plaintiff\u2019s medical treatment history).\nWoods\u2019 appeal from the trial court\u2019s order granting the Dental Board\u2019s'motion to enforce the Investigative Panel\u2019s subpoenas for her patient records affects a substantial right and is subject to immediate appellate review.\nThe balance of Woods\u2019 arguments on appeal of the trial court\u2019s order granting the Dental Board\u2019s motion to enforce the subpoenas are not grounded upon a statutory privilege under HIPAA. Because we grant appellate review based solely upon such statutory privilege, these arguments are interlocutory and are dismissed.\nIII. The Dental Board\u2019s Subpoenas\nIn her third argument, Woods contends that the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 1320d et seq., and regulations thereunder, preclude disclosure of the patient records being sought by the Dental Board. We disagree.\nStatutory interpretation is a question of law, which this Court reviews de novo. In re Appeal of Murray, 179 N.C. App. 780, 786, 635 S.E.2d 477, 481 (2006) (citation omitted). \u201cThe paramount objective of statutory interpretation is to give effect to the intent of the legislature.\u201d In Re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 560, 589 S.E.2d 179, 181 (2003) (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 663-65, 548 S.E.2d 513, 516-18 (2001)).\nWhile no North Carolina court has considered the specific issue presented in this appeal, we find cases decided in other states construing the same federal statutes and regulations to be persuasive.\nHIPAA regulates how healthcare providers use, transfer, and retain patient information. See 42 U.S.C. \u00a7 1320d et seq. HIPAA prohibits the wrongful disclosure of individually identifiable health information. 42 U.S.C. \u00a7 1320d-6. However, \u201c[u]nder this authority, regulations have been promulgated establishing procedures for the uses and disclosure of such information.\u201d In re Petition for Subpoenas, 274 Mich. App. 696, 699, 736 N.W.2d 594, 597 (2007) (citing 45 C.F.R. 164.502-164.534), appeal denied, 478 Mich. 854, 731 N.W.2d 91 (2007).\nThe Code of Federal Regulations provides: \u201cA covered entity may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this sub-chapter.\u201d 45 C.F.R. \u00a7 164.502(a) (2009). The Federal Regulations further provide that Woods may disclose:\nprotected health information to a health oversight agency for oversight activities authorized by law, including audits; civil, administrative, or criminal investigations; inspections; licensure or disciplinary actions; civil, administrative, or criminal proceedings or actions; or other activities necessary for appropriate oversight of:\n(i) The health care system;\n45 C.F.R. \u00a7 164.512(d)(1)\u00ae (2009). The Dental Board is a health oversight agency. See 45 C.F.R. \u00a7 164.501 (2009); N.C. Gen. Stat. \u00a7 90-22(b) (2007).\nIn In re Petition for Subpoenas, the Michigan Attorney General sought the enforcement of an investigative subpoena for patient records from a dentist under investigation for insurance fraud. 274 Mich. App. 696, 736 N.W.2d 594. The Michigan Court of Appeals held that HIPAA did not preclude enforcement of the subpoena. Id. at 700, 736 N.W.2d at 597-98. The Court held:\nPetitioner requested the patient health information at issue incident to an insurance fraud investigation conducted by the [Michigan Department of Community Health (MDCH)]. This information pertained to the MDCH\u2019s \u201coversight activities authorized by law,\u201d particularly a disciplinary investigation concerning respondent\u2019s provision of dental care, so respondent, as a health care provider was authorized to release information under HIPAA regulations, 45 CFR 164.512(d)(1).\nId. at 700-01, 736 N.W.2d at 598 (citations and quotations omitted).\nIn Solomon v. Board of Physicians, the Board of Physician Quality Assurance issued a subpoena to a physician seeking the medical records of nineteen patients. 155 Md. App. 687, 845 A.2d 47 (2003), cert. denied, 381 Md. 676, 851 A.2d 595 (2004). The subpoena was issued pursuant to an investigation by the Board based upon a patient complaint against the physician. The physician argued that HIPAA precluded her from complying with the subpoena. The Maryland Court of Appeals rejected the physician\u2019s argument because the subpoena was issued before HIPAA came into effect. The Court noted that even if HIPAA applied, \u201cthe regulations are not applicable to disclosures of medical records' to a licensure or disciplinary agency, such as the Board.\u201d Id. at 704-05, 845 A.2d at 57 (citing 45 C.F.R. \u00a7 164.512(d)).\nIn Chapman v. Health and Hospitals Corps., a nurse sought to compel a hospital to produce a patient\u2019s medical record in connection with an administrative disciplinary hearing. 7 Misc. 3d 933, 796 N.Y.S.2d 876 (2005). The hospital argued it was prohibited from producing the patient medical record by HIPAA. The New York Supreme Court held that HIPAA did not prohibit the disclosure of the patient record because the hospital was a covered entity permitted to disclose \u201cin the course of any judicial or administrative proceeding.\u201d Id. at 937, 796 N.Y.S.2d at 879 (citing 45 C.F.R. \u00a7 164.512(e)).\nWoods cites 45 C.F.R. \u00a7 164.512(e) as controlling the instant case, not 45 C.F.R. \u00a7 164.512(d), and argues that subpart (e) prohibits the disclosure of her patient records. Subpart (d) provides when health information may be used and disclosed for health oversight activities including licensure and disciplinary actions. 45 C.F.R. \u00a7 164.512(d) (2009). Subpart (e) provides when health information may be disclosed for judicial and administrative proceedings. 45 C.F.R. \u00a7 164.512(e) (2009). Subpart (e)(ii) provides that a subpoena, which is not accompanied by a court or administrative order must show that: (A) the party seeking the information has made reasonable efforts to ensure that the individual whose records are being requested has been given notice of the request; or (B) reasonable efforts have been made to procure a qualified protective order pursuant to 45 C.F.R. \u00a7 164.512(e)(l)(v) that prohibits the use of the information for any purpose other than that proceeding and requires the destruction of the information at the end of the proceeding. Subpart (d) does not contain such a requirement.\nRespondent in In re Petition for Subpoenas asserted this identical argument. The Michigan Court of Appeals rejected the argument holding, \u201crespondent\u2019s claim is belied by the plain language of \u00a7 512(e), which states that \u2018[t]he provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.\u2019 \u201d In re Petition for Subpoenas, 274 Mich. App. at 702, 736 N.W.2d at 599 (quoting 45 C.F.R. 164.512(e)(vi)(2)). The Court further held that because MDCH was a health oversight agency, and the requested information pertained to MDCH\u2019s oversight activities authorized by law, that respondent, as a health care provider, was authorized to release the information under 45 C.F.R. \u00a7 164.512(d)(1).\nThe Dental Board is a health oversight agency and requested Woods\u2019 patient records as part of the Dental Board\u2019s oversight activities, which includes \u201ccivil, administrative, or criminal investigations.\u201d 45 C.F.R. \u00a7 164.512(d) (2009). Thus, we hold that 45 C.F.R. \u00a7 164.512(d) is applicable to the instant case.\nWe find the reasoning of the above-cited cases to be persuasive and hold that HIPAA did not prohibit the disclosure of Woods\u2019 patient records to the Dental Board pursuant to its investigation. The Dental Board was conducting a disciplinary investigation, and Woods, as a health care provider, was authorized to release the requested information under HIPAA regulations.\nThis argument is without merit.\nWoods failed to argue her remaining assignments of error in her brief, and they are deemed abandoned pursuant to Rule 28(b)(6) of the Rules of Appellate Procedure.\nDISMISSED IN PART, AFFIRMED IN PART.\nJudges McGEE and JACKSON concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Carolin Bakewell, for petitioner-appellee.", "Michaux & Michaux, P.A., by Eric C. Michaux, for defendant-appellant." ], "corrections": "", "head_matter": "THE NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Plaintiff v. E. JEAN WOODS, D.D.S., Defendant\nNo. COA09-341\n(Filed 19 January 2010)\n1. Appeal and Error\u2014 interlocutory order \u2014 discovery denied \u2014 no proceeding filed \u2014 no substantial right affected\nNo substantial right was affected, and defendant\u2019s appeal was dismissed as from an interlocutory order, where the trial court quashed notices of deposition and subpoenas defendant had served upon the Dental Board while it was investigating defendant\u2019s conduct as a dentist. The applicable statute governing disciplinary proceedings for dentists does not permit a defendant to engage in discovery until a Notice of Hearing is filed. Defendant cannot create an action in which to conduct discovery by filing motions in superior court.\n2. Appeal and Error\u2014 interlocutory order \u2014 discovery\u2014 patient files \u2014 substantial right\nA dentist\u2019s appeal from an order granting the Dental Board\u2019s motion to enforce subpoenas for her patient records affected a substantial right and was subject to immediate appellate review where she asserted a statutory privilege under the Health Insurance Portability and Accountability Act (HIPAA). Arguments on appeal not grounded in HIPAA were dismissed.\n3. Dentists\u2014 disciplinary investigation \u2014 patient records\u2014 HIPAA \u2014 release not prohibited\nThe Health Insurance Portability and Accountability Act (HIPAA) did not prohibit release of patient records by a dentist to the Dental Board, a health oversight agency that requested the records as part of a disciplinary investigation.\nAppeal by defendant from orders filed 2 January 2009 by Judge Narley Cashwell in Wake County Superior Court. Heard in the Court of Appeals 30 September 2009.\nCarolin Bakewell, for petitioner-appellee.\nMichaux & Michaux, P.A., by Eric C. Michaux, for defendant-appellant." }, "file_name": "0089-01", "first_page_order": 117, "last_page_order": 127 }