{ "id": 12132874, "name": "GLORIA WHISENHUNT and CURTIS WHISENHUNT v. ROBERT P. ZAMMIT, M.D., and POLLACK, ZAMMIT & FERGUSON, M.D., P.A.", "name_abbreviation": "Whisenhunt v. Zammit", "decision_date": "1987-07-21", "docket_number": "No. 8621SC930", "first_page": "425", "last_page": "430", "citations": [ { "type": "official", "cite": "86 N.C. App. 425" } ], "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": "340 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "74 L.Ed. 2d 951", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "103 S.Ct. 726", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "459 U.S. 1103", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6512865, 6512738, 6512449, 6512068, 6513125, 6513036, 6512365, 6512272, 6512566, 6512950, 6512155, 6512671 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/1103-09", "/us/459/1103-08", "/us/459/1103-05", "/us/459/1103-01", "/us/459/1103-12", "/us/459/1103-11", "/us/459/1103-04", "/us/459/1103-03", "/us/459/1103-06", "/us/459/1103-10", "/us/459/1103-02", "/us/459/1103-07" ] }, { "cite": "688 F. 2d 224", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1465471 ], "year": 1982, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/f2d/688/0224-01" ] }, { "cite": "347 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "828-29" } ], "opinion_index": 0 }, { "cite": "318 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737744 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0076-01" ] } ], "analysis": { "cardinality": 630, "char_count": 13074, "ocr_confidence": 0.889, "pagerank": { "raw": 2.2431670956683483e-07, "percentile": 0.7803644150682144 }, "sha256": "a84f1301e5c024150c78ca3c814b246a839cd811e6353c6a70f7e5f2104c5631", "simhash": "1:2e2e802e356f95d8", "word_count": 2047 }, "last_updated": "2023-07-14T20:31:51.245722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Martin and Parker concur." ], "parties": [ "GLORIA WHISENHUNT and CURTIS WHISENHUNT v. ROBERT P. ZAMMIT, M.D., and POLLACK, ZAMMIT & FERGUSON, M.D., P.A." ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiffs filed suit for negligence against defendants, alleging defendant physician failed to monitor effects of prescription medication. The action centers around treatment rendered by defendant, Dr. Robert Zammit, following a total abdominal hysterectomy which was performed on plaintiff Gloria Whisenhunt. One week after her operation, the plaintiff began to experience symptoms consistent with a post-operative infection. A regimen of antibiotic therapy was started, and the types of antibiotic drugs that plaintiff was taking were modified periodically to combat the symptoms of infection she exhibited. As a result of the use of several types of antibiotics, the plaintiff contracted pseudomem-branous enterocolitis, a condition characterized by constant diarrhea. At the conclusion of the evidence, the jury returned a verdict for the defendants. On appeal, the plaintiffs argue that the trial court committed prejudicial error by prohibiting discovery of the \u201ccredentialing records\u201d of Forsyth Memorial Hospital as they pertain to defendant Zammit; that the trial court erred in not allowing the plaintiffs\u2019 expert witness to read from drug inserts provided by pharmaceutical manufacturers; and that the trial court erred in allowing defendants to cross-examine plaintiffs\u2019 expert about the suspension of the expert\u2019s privileges at two hospitals. We find no error.\nThe plaintiffs first contend that the trial court erred by not allowing them, through discovery, to get the \u201ccredentialing records\u201d of Forsyth Memorial Hospital as they pertain to Dr. Zam-mit. Immediately prior to the trial of this matter, about two years after plaintiffs commenced this action, the plaintiffs, pursuant to N.C.G.S. \u00a7 1A-1, Rule 45(c), issued a subpoena to Forsyth Memorial Hospital (a non-party in the case) seeking production of its credentialing file on Dr. Zammit. Forsyth Memorial moved to quash the subpoena on the grounds that the documents sought were confidential and privileged, under N.C.G.S. \u00a7\u00a7 143-318.11 and 131E-95. The trial court granted the motion to quash. In their brief, plaintiffs argue that the trial court erred because the information requested was not privileged under these statutes. We disagree.\nN.C.G.S. \u00a7 143-318.11(a)(17) states that a public body may hold an executive session and exclude the public:\n(17) To hear, consider, and decide matters involving admission, discipline, or termination of members of the medical staff of a public hospital. Final action on an admission or termination shall be reported at an open meeting.\nSubsection (d) of N.C.G.S. \u00a7 143-318.11 provides that minutes and records of an executive session may be withheld from public inspection so long as public inspection would frustrate the purpose of the executive session. Plaintiffs have made no showing that they sought information other than that covered specifically by N.C.G.S. \u00a7 143-318.ll(a)(17). We find the information sought to be privileged under that statute.\nThe plaintiffs\u2019 primary argument on this issue is that N.C.G.S. \u00a7 131E-95(b) does not apply in this case because the records they seek about Dr. Zammit are not the medical review committee\u2019s records about Dr. Zammit\u2019s treatment of plaintiff. Plaintiffs argue that they are seeking the \u201ccredentialing records of [defendant Zammit] in their entirety.\u201d Plaintiffs argue they are entitled to discover those records. We do not agree.\nOur Supreme Court was recently faced with a similar issue in Shelton v. Morehead Memorial Hospital, 318 N.C. 76, 347 S.E. 2d 824 (1986). In that case, the plaintiff had alleged a negligence claim against a physician after the physician had performed surgery. Plaintiff also alleged a claim against a hospital for \u201ccorporate negligence\u201d for allowing the physician to continue to practice at the hospital after having been put on notice of the physician\u2019s failure to meet ordinary standards of care. The plaintiff argued that proceedings of the medical review committee related to the corporate negligence claim of hospital were not privileged under N.C.G.S. \u00a7 131E-95 because they were not the records of the review of the specific claim against the physician. The Supreme Court rejected that argument, in an opinion by Justice (now Chief Justice) Exum:\nIt would severely undercut the purpose of \u00a7 95, ie., the promotion of candor and frank exchange in peer review proceedings, if we adopted plaintiffs\u2019 construction of the statute, for it would mean these proceedings were no longer protected whenever a claim of corporate negligence was made alone or coupled with a claim of negligence against an individual physician.\nNeither do we think the language of the statute, considered in context, permits the construction plaintiffs urge. Subsection (a) of \u00a7 95 constitutes a broad grant of immunity from liability for damages \u201cin any civil action on account of any act, statement or proceeding undertaken, made or performed within the scope of the functions of the committee.\u201d (Emphases supplied.) Subsection (b) of \u00a7 95 protects documents and related information against discovery or introduction into evidence \u201cin any civil action against a hospital . . . which results from matters which are the subject of evaluation and review by the committee.\u201d (Emphasis supplied.) A civil action against a hospital grounded on the alleged negligent performance of the hospital\u2019s medical review committees is by the statute\u2019s plain language a civil action resulting from matters evaluated and reviewed by such committees. (Footnote omitted.)\nId. at 82-83, 347 S.E. 2d at 828-29.\nWe find the analysis in Shelton applicable here. Plaintiffs cannot carve out an exception to \u00a7 95 by claiming they want to review credentialing records of defendant \u201cin their entirety.\u201d The purpose of \u00a7 95 is to promote candor in peer review proceedings, and we will not undercut that purpose. The trial court did not err in quashing the subpoena.\nThe plaintiffs\u2019 second contention on appeal is that the trial court erred in not allowing the plaintiffs\u2019 expert witness to read from drug inserts provided by pharmaceutical manufacturers. During the testimony of Dr. Jim Cleary, plaintiffs\u2019 expert witness, plaintiffs attempted to have Dr. Cleary read to the jury packaging inserts accompanying two prescription antibiotics. The plaintiffs contend that the inserts should have been allowed to have been read into evidence pursuant to N.C.G.S. 8C-1, Rule 803(18) which provides:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n(18) Learned Treatises. \u2014To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. [Emphasis supplied.]\nTo comply with Rule 803(18), the plaintiffs must show that the packaging inserts were relied upon by the expert witness in direct or cross-examination and must establish the inserts as reliable authority. After careful review of the trial transcripts, we find no testimony by the plaintiffs\u2019 expert that he relied on the packaging inserts. The expert witness stated that as a result of being asked to testify in this case he took specific courses in pharmacology so he could be prepared to give an honest, straightforward answer with questions dealing with pharmacology. When asked on direct examination what sources he had researched, the expert witness testified that he reviewed the Physicians Desk Reference, The Merck Manual (a concise summary of the practice of medicine) and specific books on gastroenterology. He never testified that he had relied on the packaging inserts to arrive at his opinions in this case. The only mention of the packaging inserts was when he was asked, on direct examination, if they were sent to physicians and if they were updated. Therefore, since the plaintiffs did not show that their expert witness relied upon the packaging inserts to arrive at his opinions, they failed to meet the requirements of N.C.G.S. \u00a7 8C-1, Rule 803(18).\nEven if the action of excluding the inserts from being read into evidence was error, it was not prejudicial to the plaintiffs. The plaintiffs\u2019 expert witness testified that the Physicians Desk Reference contained basically the same warnings and contraindications as the package inserts. The trial court allowed the expert witness to read into evidence and to the jury portions of the Physicians Desk Reference dealing with the drugs in question. Since the expert was able to read essentially the same evidence from the Physicians Desk Reference as he would have from the inserts, any error was harmless.\nThe plaintiffs\u2019 third contention on appeal is that the trial court committed prejudicial error and abused its discretion in permitting impeachment of the plaintiffs\u2019 expert witness by permitting cross-examination on specific instances of conduct: his suspension of staff privileges from Lula Conrad Hoots Hospital in Yadkinville and Forsyth Memorial Hospital. Plaintiffs argue that the probative value of the impeachment was substantially outweighed by the unfair prejudice, the confusion of the issues, and the misleading of the jury. We find no merit to this argument.\nN.C.G.S. \u00a7 8C-1, Rule 403 provides that:\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nThis state rule is identical to its federal counterpart. Looking to the federal courts for guidance, we find the following from the United States Court of Appeals for the Fourth Circuit: \u201cAppraisal of the probative and prejudicial value of evidence under Rule 403 (Fed. R. Evid. 403) is entrusted to the sound discretion of the trial judge; absent extraordinary circumstances, the Court of Appeals will not intervene in its resolution.\u201d U.S. v. MacDonald, 688 F. 2d 224, 227 (4th Cir. 1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed. 2d 951 (1983). The North Carolina Supreme Court has followed this reasoning. See State v. Mason, 315 N.C. 724, 731, 340 S.E. 2d 430, 435 (1986). In the present case, we find no abuse of discretion. The question of reasons for the witness\u2019s suspension allow the jury to decide how much weight to give to his testimony. The circumstances of his suspension may also have a bearing on the bias of the witness, which is a proper consideration for the jury.\nIn the trial below, we find\nNo error.\nJudges Martin and Parker concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Harrell Powell, Jr., and Garry Whitaker for plaintiff appellants.", "Petree, Stockton & Robinson by J. Robert Elster, Michael L. Robinson and J. David Mayberry for defendant appellees." ], "corrections": "", "head_matter": "GLORIA WHISENHUNT and CURTIS WHISENHUNT v. ROBERT P. ZAMMIT, M.D., and POLLACK, ZAMMIT & FERGUSON, M.D., P.A.\nNo. 8621SC930\n(Filed 21 July 1987)\n1. Hospitals \u00a7 6; Physicians, Surgeons and Allied Professions 8 12.1\u2014 medical malpractice \u2014 \u201ccredentialing records\u201d of hospital privileged\nThe trial court in a medical malpractice action did not err in refusing to allow plaintiffs, through discovery, to get the \u201ccredentialing records\" of a hospital as they pertained to defendant, since the documents sought were confidential and privileged under N.C.G.S. \u00a7\u00a7 143-318.11 and 131E-95.\n2. Physicians, Surgeons and Allied Professions 8 15\u2014 reading from drug inserts not allowed \u2014no error\nIn a medical malpractice action where plaintiffs alleged that defendant failed to monitor effects of prescription medication, the trial court did not err in refusing to allow plaintiffs\u2019 expert witness to read from drug inserts provided by pharmaceutical manufacturers, since plaintiffs did not show that their expert witness relied upon the packaging inserts to arrive at his opinions; moreover, even if it was error to exclude the evidence, such error was not prejudicial to plaintiffs, since the witness was allowed to read from the Physicians Desk Reference, and it contained basically the same warnings and contraindications as the package inserts.\n3. Physicians, Surgeons and Allied Professions 8 15.1\u2014 malpractice \u2014 expert witness-impeachment questions proper\nThe trial court in a medical malpractice action did not err in permitting impeachment of the plaintiffs\u2019 expert witness by cross-examination concerning his suspension of staff privileges from two hospitals, since the questions allowed the jury to decide how much weight to give to the witness\u2019s testimony and allowed the jury to determine the bias of the witness.\nAPPEAL by plaintiffs from Long, Judge. Judgment entered 28 February 1986 in Superior Court, FORSYTH County. Heard in the Court of Appeals on 3 February 1987.\nHarrell Powell, Jr., and Garry Whitaker for plaintiff appellants.\nPetree, Stockton & Robinson by J. Robert Elster, Michael L. Robinson and J. David Mayberry for defendant appellees." }, "file_name": "0425-01", "first_page_order": 453, "last_page_order": 458 }