{ "id": 12174782, "name": "JEROME BREWER, SABRINA BREWER, and MATTHEW J. BREWER, by and through his Guardian Ad Litem, Timothy T. Leach, Plaintiffs v. WILLIAM D. HUNTER, M.D., NEUROSCIENCE & SPINE CENTER OF THE CAROLINAS, P.A., and NEUROSCIENCE & SPINE CENTER OF THE CAROLINAS, L.L.P. Defendants", "name_abbreviation": "Brewer ex rel. Leach v. Hunter", "decision_date": "2014-09-02", "docket_number": "No. COA14-7", "first_page": "1", "last_page": "9", "citations": [ { "type": "official", "cite": "236 N.C. App. 1" } ], "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": "631 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636162 ], "weight": 10, "year": 2006, "pin_cites": [ { "page": "168" }, { "page": "44" }, { "page": "170" }, { "page": "4546" }, { "page": "167" }, { "page": "44" }, { "page": "45" }, { "page": "171" }, { "page": "46", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0041-01" ] }, { "cite": "645 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638455 ], "year": 2007, "pin_cites": [ { "page": "197", "parenthetical": "holding that the role of policy maker has been entrusted by onr Constitution to the General Assembly" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0196-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-63.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "566 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "161" }, { "page": "161" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081307 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "566" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0565-01" ] }, { "cite": "411 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "607" }, { "page": "607" } ], "opinion_index": 0 }, { "cite": "330 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509096 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0587-01" ] }, { "cite": "178 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376532 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/178/0165-01" ] }, { "cite": "720 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "401", "parenthetical": "holding that where the General Assembly \"requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction\"" } ], "opinion_index": 0 }, { "cite": "216 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4343062 ], "year": 2011, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc-app/216/0168-01" ] }, { "cite": "183 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204348 ], "year": 2007, "pin_cites": [ { "page": "487", "parenthetical": "holding that the role of policy maker has been entrusted by onr Constitution to the General Assembly" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0485-01" ] }, { "cite": "719 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "717 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "215 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4343331 ], "year": 2011, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/215/0443-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "579" }, { "page": "581" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "163" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "pin_cites": [ { "parenthetical": "emphasis added" }, { "page": "170" }, { "page": "591-92" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 840, "char_count": 18568, "ocr_confidence": 0.725, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.31959623900852907 }, "sha256": "08c8b7305936b86c60f975d8692a02da0a7b2759597dceb3d47c9674b38dce4c", "simhash": "1:9f64942840aed991", "word_count": 2951 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR. and ERVIN concur." ], "parties": [ "JEROME BREWER, SABRINA BREWER, and MATTHEW J. BREWER, by and through his Guardian Ad Litem, Timothy T. Leach, Plaintiffs v. WILLIAM D. HUNTER, M.D., NEUROSCIENCE & SPINE CENTER OF THE CAROLINAS, P.A., and NEUROSCIENCE & SPINE CENTER OF THE CAROLINAS, L.L.P. Defendants" ], "opinions": [ { "text": "DAVIS, Judge.\nWilliam D. Hunter, M.D. (\u201cDr. Hunter\u201d), Neuroscience & Spine Center of the Carolinas, P.A., and Neuroscience & Spine Center of the Carolinas, L.L.P. (collectively \u201cDefendants\u201d) appeal from an order granting in part the motion of Jerome Brewer, Sabrina Brewer, Matthew Brewer, and Timothy T. Leach, the guardian ad litem of Matthew Brewer, (collectively \u201cPlaintiffs\u201d) to compel discovery in this medical malpractice action. On appeal, Defendants contend that the trial court erred in requiring them to produce various medical records regarding certain former patients of Dr. Hunter who are not parties to this lawsuit. After careful review, we conclude that the trial court\u2019s order should be affirmed.\nFactual Background\nIn 1998, Jerome Brewer (\u201cMr. Brewer\u201d) underwent thoracic spinal surgery for treatment of spinal stenosis, back pain, and bilateral leg weakness. In 2007, Mr. Brewer was seen by his primary care physician for treatment of back pain and leg weakness, symptoms similar to those that led to his surgery in 1998.\nOn 28 January 2008, Mr. Brewer was referred to Dr. Hunter, who was employed by Neuroscience & Spine Center of the Carolinas, P.A. and Neuroscience & Spine Center of the Carolinas, L.L.P., after an MRI scan revealed diffuse degenerative disease in Mr. Brewer\u2019s lumbar area and severe canal stenosis. On 19 March 2008, Dr. Hunter diagnosed Mr. Brewer as suffering from severe spinal stenosis and recommended a thoracic laminectomy. Mr. Brewer consented to the surgery, which was performed by Dr. Hunter on 10 April 2008.\nUpon awakening from surgery, Mr. Brewer discovered that he was unable to move his lower extremities and had no sensation below his thighs. An MRI scan revealed that he had suffered a severe spinal cord infarction during surgery. Subsequent MRI scans revealed that Mr. Brewer continued to suffer from severe myelomalacia. To date, Mr. Brewer remains permanently confined to a wheelchair, continues to undergo physical therapy and rehabilitation, and requires assistance with daily tasks, including managing his bowel and bladder functions.\nOn 31 August 2012, Plaintiffs filed an amended complaint in Gaston County Superior Court against Defendants, alleging medical negligence, loss of consortium, and negligent infliction of emotional distress. Plaintiffs subsequently served a set of written discovery requests on Defendants which sought, inter alia, \u201call documents . . . showing Dr. Hunter\u2019s complications and complication rate for thoracic laminecto-mies during 2005, 2006, 2007, and 2008 (up to and including April 10, 2008)\u201d and \u201call documents . . . showing Dr. Hunter\u2019s case volume for thoracic laminectomies during 2005, 2006, 2007, and 2008 (up to and including April 10, 2008).\u201d In response, Defendants produced a copy of a letter from Gaston Memorial Hospital identifying 14 thoracic laminecto-mies performed by Dr. Hunter at the hospital between May of 2005 and October of 2011 (including the operation performed on Mr. Brewer) and stating that those surgeries \u201cwere performed with no issues noted[.]\u201d\nOn 21 September 2012, Dr. Hunter was deposed. During his deposition, Dr. Hunter testified that he had personally created a fist of 44 instances, including patient names and dates of surgery, in which he had performed thoracic laminectomies. Plaintiffs subsequently requested the production of this document, and a copy of the document \u2014 with the names of the patients redacted \u2014 was provided to Plaintiffs\u2019 counsel.\nOn 25 October 2012, Plaintiffs filed a second set of written discovery requests in which they sought, among other things, \u201cthe operative notes and discharge summaries for all surgeries performed by Dr. Hunter and as identified on the document created by Dr. Hunter prior to his deposition and attached as Exhibit A to this Request!.]\u201d Plaintiffs attached to this request the redacted document that had been produced by Defendants following Dr. Hunter\u2019s deposition. After Defendants served objections to this request, Plaintiffs filed a motion to compel on 18 July 2013.\nA hearing on Plaintiffs\u2019 motion took place on 29 July 2013. On 15 August 2013, the trial court entered an order granting Plaintiffs\u2019 motion in part, which contained the following findings of fact and conclusions of law:\n1. Plaintiff sought production of 44 individual patient\u2019s operative notes and discharge summaries documenting surgical procedures they had with the Defendant.\n2. Plaintiff argued that the operative notes and discharge summaries of the 44 individual patients were necessary to assess the credibility of the Defendant with regard to his testimony about the number of surgical procedures he had performed and the number of complications following those procedures he had encountered at the time he responded to questions at his deposition. Plaintiff also argued that the operative notes would demonstrate the operative technique utilized by Defendant.\n3. The Court has considered the interests of the parties and the issues at stake in this litigation and carefully weighed these interests against the concern to protect the private health information of non-party patients. A balance between these competing interests is best obtained by compelling production of some of the requested documents, with appropriate redactions that would allow for the protection of the identity of the patients.\n4. In the exercise of its discretion, this Court finds good cause exists for the Plaintiffs\u2019 Motion to Compel Discovery, and it is ALLOWED IN PART and DENIED IN PART.\nIT IS THEREFORE ORDERED, ADJDUGED [sic], and DECREED that:\n1. The Defendants shall produce the operative notes and discharge summaries for all procedures occurring from 2005 through October 15, 2011 as identified on Exhibit A to Plaintiffs\u2019 Motion to Compel Discovery, including the following dates of service: 5/10/05; 5/17/05; 5/23/05; 7/28/05; 9/8/05; 10/24/05; 3/9/06; 3/13/06; 7/15/06; 8/30/07; 9/17/07; 9/28/07; 1/18/08; 2/15/08; 7/10/08; 11/21/08; 11/24/08; 4/2/09; 10/5/10; 10/8/10; 3/4/11; 3/28/11; 5/13/11; 6/23/11; and 10/15/11.\n2. Plaintiff\u2019s request for production of operative notes and discharge summaries for procedures occurring prior to 2005 is DENIED and the procedures identified on Exhibit A to Plaintiffs Motion to Compel Discovery prior to May 10, 2005, shall not be produced as they are privileged and not relevant to this matter.\n3. Prior to production, the Defendants may redact any protected health information from the operative notes and discharge summaries.\n4. To the extent that there is information, other than identifying information, contained in the produced records that is highly sensitive, or may otherwise require redaction, Defense counsel may submit the operative note and discharge summary to this Court for in camera inspection. The Court will review and consider any proposed redactions.\n5. The Defendants shall produce these operative notes and discharge summaries within a reasonable time not to exceed 45 days from entry of this order.\n6. Because the records being produced pursuant to this Order are subject to the protections of the Health-Insurance Portability and Accountability Act of 1996 (\u201cHIPAA\u201d), 45 C.F.R. 164.500, et seq., N.C. Gen. Stat. \u00a7 131E-97, and N.C. Gen. Stat. \u00a7 8-53, the production of these records affects a substantial right and there is no just reason to delay appeal.\nDefendants filed a timely notice of appeal to this Court.\nAnalysis\nDefendants contend that the trial court erred by granting in part Plaintiffs\u2019 motion to compel. We disagree.\nI. Jurisdiction\nAs an initial matter, we must determine whether we have jurisdiction over this appeal. \u201cAn order compelling discovery 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 Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999). However, where a party asserts a privilege or immunity that directly relates to the matter to be disclosed pursuant to the interlocutory discovery order and the assertion of the privilege or immunity is not frivolous or insubstantial, the challenged order affects a substantial right and is thus immediately appealable. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 446, 717 S.E.2d 1, 4, disc. review denied, 365 N.C. 369, 719 S.E.2d 37(2011).\nIn the present case, Defendants argue that the documents at issue are immune from discovery based on the privilege set out in N.C. Gen. Stat. \u00a7 8-53, which governs the discoverability of a patient\u2019s medical records. Our Supreme Court has held that \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, 351 N.C. at 166, 522 S.E.2d at 581. Accordingly, we possess jurisdiction over this appeal.\nII. Application of N.C. Gen. Stat. \u00a7 8-53\nN.C. Gen. Stat. \u00a7 8-53 states as follows:\nNo 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 as a physician, or to do any act for him as a surgeon, and no such information shall be considered public records under G.S. 132-1. Confidential information obtained in medical records shall be furnished only on the authorization of the patient, or if deceased, the executor, administrator, or, in the case of unadministered estates, the next of kin. Any resident or presiding judge in the district, either at the trial or prior thereto, or the Industrial Commission pursuant to law may, subject to G.S. 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice. If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.\nN.C. Gen. Stat. \u00a7 8-53 (2013) (emphasis added).\nIn the present case, Defendants contend that the production of non-party medical records should be compelled only in exceptional circumstances. However, the essence of their argument is grounded more in policy than in law. It is well established in North Carolina that policy decisions are solely within the province of the General Assembly. See Richards v. N.C. Tax Review Bd., 183 N.C. App. 485, 487, 645 S.E.2d 196, 197 (2007) (holding that the role of policy maker has been entrusted by onr Constitution to the General Assembly).\nWhile the General Assembly could have drafted N.C. Gen. Stat. \u00a7 8-53 so as to impose greater restrictions on the disclosure of non-party medical records than those applicable to the disclosure of the medical records of parties to the litigation before the court, no such distinction has been drawn in this statute. Instead, N.C. Gen. Stat. \u00a7 8-53 leaves the discoverability of all patient records subject to the discretion of the trial courts of this State based upon whether the court believes the disclosure of records is \u201cnecessary to a proper administration of justice.\u201d N.C. Gen. Stat. \u00a7 8-53.\nThis Court lacks the authority to judicially create - as Defendants invite us to do - a new standard applicable to the production of medical records where the General Assembly has enacted a statute addressing the issue. See State v. Sims, 216 N.C. App. 168, 173, 720 S.E.2d 398, 401 (2011) (holding that where the General Assembly \u201crequires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction\u201d).\nTherefore,\u2018the only question before us is whether, on the facts of the present case, the trial court abused its discretion in determining that the disclosure of various records of certain former patients of Dr. Hunter was \u201cnecessary to a proper administration of justice.\u201d Our prior' case law applying N.C. Gen. Stat. \u00a7 8-53 makes clear that a trial court\u2019s ruling pursuant to this statute is reviewed under an abuse of discretion standard. For example, in Roadway Exp., Inc. v. Hayes, 178 N.C. App. 165, 631 S.E.2d 41 (2006), the plaintiff sought discovery concerning the issue of whether the defendant had been taking any prescription medications and had consumed alcohol at the time of a motor vehicle accident. Id. at 168, 631 S.E.2d at 44. The trial court ordered the defendant to produce his medical records under seal for an in camera review, limiting the scope of production to \u201conly 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.\u201d Id. at 170, 631 S.E.2d at 4546. Following the in camera review, the trial court ordered that the records be produced to the plaintiff. Id. at 167, 631 S.E.2d at 44.\nOn appeal, we held \u2014 based on N.C. Gen. Stat. \u00a7 8-53 \u2014 that \u201c[t]he 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.\u201d Id. at 170, 631 S.E.2d at 45. We further emphasized that \u201c[t]he decision that disclosure is necessary to a proper administration of justice is 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.\u201d Id. at 171, 631 S.E.2d at 46 (citations and quotations omitted).\nIn State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992), the State sought to compel the release of medical records concerning the defendant\u2019s blood alcohol content following a motor vehicle accident. Id. at 591, 411 S.E.2d at 607. Citing N.C. Gen. Stat. \u00a7 8-53, our Supreme Court affirmed the trial court\u2019s order compelling the disclosure of the requested records, holding that a court\u2019s ruling pursuant to this statute may only be overturned on appeal upon a showing of abuse of discretion. Id. at 591-92, 411 S.E.2d at 607.\n\u201cUnder the abuse-of-discretion standard, we review to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.\u201d Mark Grp. Int\u2019l, Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002). In the present case, after a hearing in which it carefully considered the arguments of counsel and reviewed the documents submitted by the parties, the trial court summarized the basis for its holding as follows:\nMy conclusion is that the request of records are [sic] relevant from the standpoint of credibility, experience, and technique used. That the records that I\u2019m going to encompass by this order are necessary for the administration of justice.\nThe court then entered an order reflecting the fact that it had carefully balanced the respective interests implicated by Plaintiffs\u2019 motion:\nThe Court has considered the interests of the parties and the issues at stake in this litigation and carefully weighed these interests against the concern to protect the private health information of non-party patients. A balance between these competing interests is best obtained by compelling production of some of the requested documents, with appropriate redactions that would allow for the protection of the identity of the patients.\nThe careful consideration given to this issue by the trial court was evidenced by its decision to (1) require the production of only 25 of the 44 patient records requested; (2) provide for the redaction of information that could reveal the identity of the patients whose records were being produced; and (3) recognize the potential need of the parties to obtain an in camera inspection of any portions of the records to be produced containing other personal or sensitive information that could potentially require redaction.\nBased on the facts of this case, we cannot say that the trial court\u2019s ruling was \u201cmanifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.\u201d Mark Grp. Int\u2019l, Inc., 151 N.C. App. at 566, 566 S.E.2d at 161. Therefore, we hold that the trial court did not abuse its discretion in granting in part Plaintiffs\u2019 motion to compel.\nConclusion\nFor the reasons set out above, the trial court\u2019s 15 August 2013 order is affirmed.\nAFFIRMED.\nJudges HUNTER, JR. and ERVIN concur.\n. Plaintiffs\u2019 original complaint is not contained in the record on appeal.\n. N.C. Gen. Stat. \u00a7 8-63.6 concerns the privilege applicable to a marital counselor, psychologist, or social worker in alimony actions and is, therefore, not relevant to the present case.\n. Defendants cite to several cases from other jurisdictions in which courts have refused to require the production of non-party medical records in discovery. However, unlike North Carolina, none of those jurisdictions confer upon their trial courts the discretion to determine the discoverability of such records.", "type": "majority", "author": "DAVIS, Judge." } ], "attorneys": [ "Law Office of Thomas D. Bumgardner, PLLC, by Thomas D. Bumgardner, and The Bisen Law Firm Co., L.P.A., by Brian N. Eisen, pro hac vice, for plaintiffs-appellees.", "Lincoln Derr, PLLC, by Sara R. Lincoln and Scott S. Addison, for defendants-appellants." ], "corrections": "", "head_matter": "JEROME BREWER, SABRINA BREWER, and MATTHEW J. BREWER, by and through his Guardian Ad Litem, Timothy T. Leach, Plaintiffs v. WILLIAM D. HUNTER, M.D., NEUROSCIENCE & SPINE CENTER OF THE CAROLINAS, P.A., and NEUROSCIENCE & SPINE CENTER OF THE CAROLINAS, L.L.P. Defendants\nNo. COA14-7\nFiled 2 September 2014\n1. Appeal and Error\u2014interlocutory orders and appeals\u2014discovery order\u2014patient medical records\u2014substantial right\nAlthough an order compelling discovery is generally interlocutory and not immediately appealable, defendants assertion of the statutory privilege set out in N.C.G.S. \u00a7 8-53 regarding patient medical records affected a substantial right.\n2. Discovery\u2014medical records\u2014former patients\nThe trial court did not abuse its discretion in a medical malpractice case by determining that the disclosure of various medical records of certain former patients of Dr. Hunter was necessary to a proper administration of justice.\nAppeal by defendants from order entered 15 August 2013 by Judge F. Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 8 May 2014.\nLaw Office of Thomas D. Bumgardner, PLLC, by Thomas D. Bumgardner, and The Bisen Law Firm Co., L.P.A., by Brian N. Eisen, pro hac vice, for plaintiffs-appellees.\nLincoln Derr, PLLC, by Sara R. Lincoln and Scott S. Addison, for defendants-appellants." }, "file_name": "0001-01", "first_page_order": 9, "last_page_order": 17 }