{ "id": 4321913, "name": "JUDY HAMMOND v. SAIRA SAINI, M.D.; CAROLINA PLASTIC SURGERY OF FAYETTEVILLE, P.C.; VICTOR KUBIT, M.D.; CUMBERLAND ANESTHESIA ASSOCIATES, P.A.; WANDA UNTCH; JAMES BAX; and CUMBERLAND COUNTY HOSPITAL SYSTEM, INC.", "name_abbreviation": "Hammond v. Saini", "decision_date": "2014-12-19", "docket_number": "No. 492PA13", "first_page": "607", "last_page": "612", "citations": [ { "type": "official", "cite": "367 N.C. 607" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "748 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": -1 }, { "cite": "347 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "829-30" } ], "opinion_index": 0 }, { "cite": "318 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737744 ], "year": 1986, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0076-01" ] }, { "cite": "584 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "357 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491499 ], "year": 2003, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0316-01" ] }, { "cite": "703 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "694 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "419" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176550 ], "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0532-01" ] }, { "cite": "722 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "462", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153413 ], "year": 2012, "pin_cites": [ { "page": "392", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0389-01" ] }, { "cite": "748 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "590" }, { "page": "588, 592-94" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 585, "char_count": 11373, "ocr_confidence": 0.742, "pagerank": { "raw": 1.025681810443927e-07, "percentile": 0.5466486656171846 }, "sha256": "5a118577d950c54de9513a462f0ce7b53b1a1f23c25a68c27955708359abc3fc", "simhash": "1:4a03c3ee27fc10d8", "word_count": 1798 }, "last_updated": "2023-07-14T22:06:46.212757+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUDY HAMMOND v. SAIRA SAINI, M.D.; CAROLINA PLASTIC SURGERY OF FAYETTEVILLE, P.C.; VICTOR KUBIT, M.D.; CUMBERLAND ANESTHESIA ASSOCIATES, P.A.; WANDA UNTCH; JAMES BAX; and CUMBERLAND COUNTY HOSPITAL SYSTEM, INC." ], "opinions": [ { "text": "JACKSON, Justice.\nIn this case we consider whether certain documents in the possession of the Cumberland County Health System, Inc. (\u201cCCHS\u201d) are shielded from discovery by section 131E-95 of the North Carolina General Statutes, which protects \u201c[t]he proceedings of a medical review committee, the records and materials it produces and the materials it considers.\u201d N.C.G.S. \u00a7 131E-95(b) (2013). Because we conclude that CCHS failed to demonstrate the existence of a medical review committee within the meaning of the statute, we hold that the documents are not shielded from discovery on this basis. Accordingly, we affirm the decision of the Court of Appeals.\nOn 28 September 2011, plaintiff filed a complaint against defendants in Superior Court, Cumberland County. Plaintiffs complaint alleged that on 17 September 2010, she went to Cape Fear Valley Medical Center for surgery to remove a possible basal cell carcinoma from her face. The surgery was performed by Saira Saini, M.D., a physician with Carolina Plastic Surgery of Fayetteville, P.C., and total intravenous anesthesia was administered by Victor Kubit, M.D., an anesthesiologist with Cumberland Anesthesia Associates, P.A. During the surgery, drapes were placed on plaintiffs face, and Dr. Kubit, along with nurse anesthetists Wanda Untch and James Bax, both CCHS employees, administered supplemental oxygen to plaintiff through a face mask. The complaint asserted that the supplemental oxygen was \u201cpermitted ... to build up under the ... drapes\u201d on plaintiffs face. According to the complaint, the oxygen and the drapes were ignited by an electrocautery device used by Dr. Saini to stop bleeding, and the resulting fire caused first and second degree burns and left plaintiff with permanent injuries and scars. As a result, plaintiff sought damages based upon negligence.\nOn 2 December 2011, defendants CCHS, Untch, and Bax filed an answer denying the allegations of negligence. Subsequently, plaintiff served interrogatories and requests for production of documents on these defendants. Defendants objected to some of plaintiffs discovery requests and argued, inter alia, that N.C.G.S. \u00a7 131E-95 shielded from discovery: (1) documents titled \u201cQuality Care Control Reports\u201d (\u201cQCC Reports\u201d) prepared by Bax and Stephanie Emanuel; (2) notes taken by CCHS Risk Manager Harold Maynard; and (3) a document titled \u201cRoot Cause Analysis Report\u201d (\u201cRCA Report\u201d).\nPlaintiff filed motions to compel discovery pursuant to Rule 37 of the North Carolina Rules of Civil Procedure. In opposing these motions, defendants submitted an affidavit from Maynard and a copy of an administrative policy titled \u201cSentinel Events and Root Cause Analysis\u201d (\u201cRCA Policy\u201d). In addition, defendants submitted copies of the documents that they had withheld to the trial court for in camera review. On 18 June 2012, the trial court entered orders granting plaintiffs motions to compel discovery. On an interlocutory appeal from these orders, the Court of Appeals affirmed the trial court\u2019s conclusion that N.C.G.S. \u00a7 131E-95 did not apply because defendants had not shown that the withheld documents were part of a medical review committee\u2019s proceedings, were produced by a medical review committee, or were considered by a medical review committee as required by the statute. Hammond v. Saini, _N.C. App. _, _, 748 S.E.2d 585, 590 (2013). We allowed defendants\u2019 petition for discretionary review.\nDefendants argue that after the operating room fire that injured plaintiff, CCHS established a Root Cause Analysis Team (\u201cRCA Team\u201d), which constitutes a medical review committee pursuant to N.C.G.S. \u00a7 131E-76(5). Defendants contend that as a result, the QCC Reports, Maynard\u2019s notes, and the RCA Report, which allegedly were considered or produced by the RCA Team, are protected by N.C.G.S. \u00a7 131E-95. We disagree.\nThis matter presents a question of statutory interpretation, which we review de novo. In re Vogler Realty, Inc., 365 N.C. 389, 392, 722 S.E.2d 459, 462 (2012) (citation omitted); see also Bryson v. Haywood Reg\u2019l Med. Ctr., 204 N.C. App. 532, 535, 694 S.E.2d 416, 419 (citation omitted), disc. rev. denied, 364 N.C. 602, 703 S.E.2d 158 (2010). Pursuant to subsection 131E-95(b), \u201c[t]he proceedings of a medical review committee, the records and materials it produces and the materials it considers\u201d are shielded from discovery and introduction into evidence in certain civil cases. N.C.G.S. \u00a7 131E-95(b). A medical review committee is\nany of the following committees formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing:\na. A committee of a state or local professional society.\nb. A committee of a medical staff of a hospital.\nc. A committee of a hospital or hospital system, if created by the governing board or medical staff of the hospital or system or operating under written procedures adopted by the governing board or medical staff of the hospital or system.\nd. A committee of a peer review corporation or organization.\nId. \u00a7 131E-76(5) (2013). The party asserting the privilege has the burden to demonstrate each of its essential elements and cannot meet this burden by mere conclusory assertions. In re Miller, 357 N.C. 316, 336, 584 S.E.2d 772, 787 (2003). In the case sub judice, defendants rely upon subdivision (c) of this definition in asserting that the RCA Team constitutes a medical review committee. Necessarily, to establish the applicability of the definition in subdivision (c), the evidence must set forth either how the committee was \u201ccreated\u201d or how the \u201cwritten procedures\u201d it \u201coperates] under\u201d were \u201cadopted.\u201d N.C.G.S. \u00a7 131E-76(5)(c); see also Shelton v. Morehead Mem\u2019l Hosp., 318 N.C. 76, 84, 347 S.E.2d 824, 829-30 (1986) (considering whether a hospital\u2019s board of trustees constituted a medical review committee based upon evaluation of the roles and powers of the board, the bylaws of the hospital and medical staff, and the requirement that a specific officer \u201cbe invited to attend\u201d medical staff executive committee meetings).\nHere, defendants rely upon Maynard\u2019s affidavit, which states in pertinent part:\n3. The attached CCHS Administrative Policy titled \u201cSentinel Events and Root Cause Analysis\u201d was in place on September 17, 2010.\n4. Pursuant to this policy, the events related to Ms. Hammond\u2019s surgery on September 17, 2010, were considered to be a sentinel event and a root cause analysis was performed that resulted in the production of a root cause analysis report. The sentinel event and root cause analysis processes are peer review processes designed to evaluate the quality, cost of, and/or necessity for hospitalization and/or the providing of health care.\n5. In general, the peer review committees established to deal with sentinel events and prepare a root cause analysis are created by the medical staff and governing board of CCHS and operate under the attached written procedures, which have been adopted by the medical staff and governing board of the healthcare system. This was true on September 17, 2010.\n6. Pursuant to the attached CCHS policy, the sentinel event and root cause analysis activities are considered Medical Review Committees as defined by N.C.G.S. \u00a7[ ]131E-76(5). The proceedings related to the sentinel event and root cause analysis peer review activities, the records and materials they produce, and the materials they consider are confidential pursuant to N.C.G.S. \u00a7[ J131E-95.\nThis affidavit is insufficient to demonstrate that the RCA Team meets the criteria for a medical review committee as defined by N.C.G.S. \u00a7 131E-76(5)(c). Instead, the affidavit merely recites the language of the statute and offers the conclusory assurance that each requirement has been satisfied. The affidavit does not provide specific evidence that could serve as the basis of findings of fact or conclusions of law. In addition, it explains none of the formal organizational processes that led to the adoption of the RCA Policy and the creation of the RCA Team and identifies none of the departments or personnel involved.\nSimilarly, defendants rely upon the RCA Policy, which does not contain sufficient evidence to demonstrate the applicability of N.C.G.S. \u00a7\u00a7 131E-76(5) and 131E-95(b). Nothing about the policy itself indicates that the RCA Team \u201coperated] under\u201d the policy in this investigation. See N.C.G.S. \u00a7 131E-76(5)(c). In addition, it does not appear that the RCA Policy was \u201cadopted by the governing board or medical staff of\u2019 CCHS. See id. The policy states only that it was \u201capproved by MN\u201d and that it originated in the \u201cPerformance Improvement/Patient Safety\u201d department. No evidence has identified these entities as the governing board or medical staff of CCHS.\nBased upon the evidence in the record, we are unable to conclude that the RCA Team constitutes a medical review committee pursuant to N.C.G.S. \u00a7 131E-76(5). As a result, the trial court did not err by con-eluding that the QCC Reports, Maynard\u2019s notes, and the RCA Report are not protected by N.C.G.S. \u00a7 131E-95(b). The decision of the Court of Appeals, except as modified herein, is affirmed as to the issue on direct appeal pursuant to the PDR. We remand this case to the COA for further remand to the trial court for additional proceedings not inconsistent with this opinion.\nMODIFIED, AFFIRMED, AND REMANDED.\n. The remaining defendants are not parties to this appeal.\n. In addition, the Court of Appeals considered other issues raised by defendants. Hammond,_N.C. App. at_,_, 748 S.E.2d at 588, 592-94. These issues were not presented in the petition for discretionary review and are not before this Court. See N.C. R. App. P. 16(a).", "type": "majority", "author": "JACKSON, Justice." } ], "attorneys": [ "Patterson Harkavy LLP, by Burton Craige and Narendra K. Ghosh; and Beaver Holt Stemlicht & Courie, PA., by Mark A. Stemlicht, for plaintiff-appellee.", "McGuireWoods, LLP, by Patrick M. Meacham, Mark E. Anderson, and Monica E. Webb, for defendant-appellants Wanda Untch, James Bax, and Cumberland County Hospital System, Inc.", "The Lawing Firm, P.A., by Sally A. Lawing; and The Whitley Law Firm, by Ann C. Ochsner, for North Carolina Advocates for Justice, amicus curiae.", "Linwood Jones, General Counsel, for North Carolina Hospital Association, amicus curiae." ], "corrections": "", "head_matter": "JUDY HAMMOND v. SAIRA SAINI, M.D.; CAROLINA PLASTIC SURGERY OF FAYETTEVILLE, P.C.; VICTOR KUBIT, M.D.; CUMBERLAND ANESTHESIA ASSOCIATES, P.A.; WANDA UNTCH; JAMES BAX; and CUMBERLAND COUNTY HOSPITAL SYSTEM, INC.\nNo. 492PA13\n(Filed 19 December 2014)\nDiscovery \u2014 medical review privilege \u2014 failure to establish medical review committee\nThe trial court did not err in a medical malpractice case by concluding that the Quality Care Control Reports, notes taken by the Cumberland County Health System, Inc. (CCHS) Risk Manager, and the Root Cause Analysis Report were not protected by N.C.G.S. \u00a7 131E-95(b). Defendant CCHS failed to demonstrate the existence of a medical review committee within the meaning of the statute, and thus, the documents were not shielded from discovery.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, _ N.C. App. _, 748 S.E.2d 585 (2013), affirming in part and vacating and remanding in part orders entered on 18 June 2012 by Judge Mary Ann Tally in Superior Court, Cumberland County. Heard in the Supreme Court on 6 October 2014.\nPatterson Harkavy LLP, by Burton Craige and Narendra K. Ghosh; and Beaver Holt Stemlicht & Courie, PA., by Mark A. Stemlicht, for plaintiff-appellee.\nMcGuireWoods, LLP, by Patrick M. Meacham, Mark E. Anderson, and Monica E. Webb, for defendant-appellants Wanda Untch, James Bax, and Cumberland County Hospital System, Inc.\nThe Lawing Firm, P.A., by Sally A. Lawing; and The Whitley Law Firm, by Ann C. Ochsner, for North Carolina Advocates for Justice, amicus curiae.\nLinwood Jones, General Counsel, for North Carolina Hospital Association, amicus curiae." }, "file_name": "0607-01", "first_page_order": 647, "last_page_order": 652 }