An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1475
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
CLIFFORD ROBERTS WHEELESS, III,
M.D.,
Plaintiff
v. Vance County
No. 11 CVS 859
MARIA PARHAM MEDICAL CENTER, INC.,
Defendant
Appeal by plaintiff from order entered 1 July 2013 by Judge
James E. Hardin, Jr. in Vance County Superior Court. Heard in
the Court of Appeals 7 May 2014.
The Law Office of Colon & Associates, PLLC, by Arlene L.
Velasquez-Colon; and Congdon Law, by Jeannette Griffith
Congdon, for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, LLP, by James M. Powell
and Theresa M. Sprain, for defendant-appellee.
CALABRIA, Judge.
Clifford Roberts Wheeless, III, M.D. (“plaintiff”) appeals
from an order denying his motion for protective order and
granting Maria Parham Medical Center, Inc.’s (“defendant”)
motion to compel. We affirm.
I. Background
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Plaintiff is an orthopedic surgeon who held active staff
privileges with defendant until July 2006. In 2005, defendant’s
Medical Executive Committee (“MEC”) conducted a peer review
proceeding regarding plaintiff’s clinical skills (the “2005 peer
review”). In 2006, defendant initiated a separate peer review
proceeding regarding allegations of plaintiff’s violations of
defendant’s disruptive physician policy (the “2006 peer
review”). Plaintiff requested a “fair hearing,” which was
scheduled to consider the allegations of plaintiff’s disruptive
behavior. Prior to the date of the fair hearing, the parties
negotiated and entered into a Mediated Settlement Agreement
(“MSA”). The terms of the MSA required, inter alia, that
plaintiff deliver a request for the MEC to change his staff
privileges from Active Staff to Consulting Staff, and that the
MEC terminate without further action any and all pending or
contemplated disciplinary actions against plaintiff.
In a letter dated August 2006, plaintiff alleged that
defendant failed to honor his consulting privileges pursuant to
the MSA, and requested that defendant take “whatever corrective
steps appear to be necessary” to comply with the MSA. Plaintiff
again notified defendant of an alleged failure to comply with
the MSA in January 2007, alleging three specific instances
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similar to those described in the August 2006 letter. In
February 2009, plaintiff was contacted by the North Carolina
Medical Board (“NCMB”) regarding an anonymous complaint by “W.
Blower” that had been submitted to the NCMB alleging
inappropriate or disruptive behavior on plaintiff’s part. The
“W. Blower” allegations included references to incidents that
were the subject of the 2005 and 2006 peer reviews and fair
hearing.
On 25 August 2011, plaintiff filed a complaint against
defendant alleging, inter alia, unfair and deceptive trade
practices, breach of contract, fraud, civil conspiracy, tortious
interference with contractual relations, invasion of privacy,
intentional infliction of emotional distress (“IIED”), and
negligent infliction of emotional distress (“NIED”). In
connection with his claims for breach of contract, civil
conspiracy, tortious interference with contractual relations,
and invasion of privacy, plaintiff alleged that he suffered
emotional distress “as a direct and proximate result” of
defendant’s actions, and sought compensatory and punitive
damages. After a hearing, the trial court granted summary
judgment in favor of defendant regarding some of plaintiff’s
claims. The remaining claims progressed to discovery.
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In response to one of defendant’s interrogatories,
plaintiff indicated that he had been treated by the North
Carolina Physician Help Program (“NC PHP”), and that “specifics
may be obtained from NC PHP program.” Plaintiff did not assert
any privilege but objected on the grounds that the interrogatory
was overly broad and not reasonably calculated to lead to
discovery of admissible evidence. On 30 April 2012, plaintiff
voluntarily dismissed, without prejudice, his claims for IIED
and NIED.
On 2 May 2012, plaintiff testified at a deposition that as
part of his involvement with NC PHP, he participated in a
program at the Physicians Renewal Center in Lawrence, Kansas
(“PRC”), and had regular visits with psychologist George
Wagaman, Ph.D. (“Dr. Wagaman”) in Chapel Hill, North Carolina.
After defendant sent plaintiff a formal request to execute
releases for plaintiff’s records from NC PHP, plaintiff claimed
that his records were privileged because the records were
requested for use by a medical review board pursuant to N.C.
Gen. Stat. § 131E-95. Defendant subsequently filed a motion to
compel. Plaintiff filed a motion for a protective order.
After a hearing on both motions, the trial court entered an
order for in camera review of plaintiff’s records from NC PHP,
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Dr. Wagaman, and the PRC. After the in camera review, the trial
court entered an order finding that “plaintiff’s counsel
reaffirmed that plaintiff is seeking, as alleged in his
complaint, emotional distress damages in conjunction with the
claims that remain pending in the lawsuit. As a result,
Plaintiff has placed his mental health and history at issue in
this lawsuit.” The trial court concluded that plaintiff’s
medical records were “plainly relevant to his claims for
emotional distress damages, and Plaintiff has waived any
privilege that might otherwise shield his medical records from
being discovered.” The trial court then granted defendant’s
motion to compel. Plaintiff appeals.
Plaintiff argues that the trial court (1) abused its
discretion in concluding that plaintiff waived his privilege,
and (2) erred in concluding that the privilege afforded the NC
PHP does not extend to other providers. Defendant filed a
motion to dismiss plaintiff’s appeal.
II. Interlocutory Appeal / Motion to Dismiss
As an initial matter, defendant contends that plaintiff’s
appeal should be dismissed because there is substantial evidence
to support the trial court’s finding that plaintiff impliedly
waived his privilege. We note that this appeal concerns an
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order to compel discovery and this appeal is interlocutory.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However,
"orders compelling discovery of materials purportedly protected
by the medical review privilege or work product doctrine are
immediately reviewable on appeal despite their interlocutory
nature." Hammond v. Saini, ___ N.C. App. ___, ___, 748 S.E.2d
585, 588 (2013). “[I]mmediate appeal is available from an
interlocutory order or judgment which affects a substantial
right.” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,
579 (1999) (quotation marks omitted). "Accordingly, 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[.]" Id. at 166, 522 S.E.2d at 581. Because
plaintiff’s appeal concerns a claim of privilege, the trial
court’s order finding that plaintiff had waived his privilege
affects a substantial right. Therefore, we deny defendant’s
motion to dismiss and address plaintiff’s appeal.
III. Waiver
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We first address whether the trial court abused its
discretion in concluding that plaintiff waived his privilege.
Plaintiff specifically contends that because he dismissed his
claims for IIED and NIED, his NC PHP records are irrelevant to
the action. We disagree.
When reviewing a trial court’s ruling on a discovery issue,
this Court reviews the trial court’s order for abuse of
discretion. Midkiff v. Compton, 204 N.C. App. 21, 24, 693
S.E.2d 172, 175 (2010). “Abuse of discretion results where the
court’s ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.” Id. (citation omitted).
“The facts and circumstances of a particular case determine
whether a patient’s conduct constitutes an implied waiver, and a
patient impliedly waives his privilege when he does not object
to requested disclosures of the privileged information.”
Mosteller v. Stiltner, ___ N.C. App. ___, ___, 727 S.E.2d 601,
603 (2012) (citation omitted). Our Courts have “also recognized
an implied waiver where a patient by bringing an action,
counterclaim, or defense directly placed her medical condition
at issue.” Mims v. Wright, 157 N.C. App. 339, 342-43, 578
S.E.2d 606, 609 (2003) (citations omitted).
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In Young v. Kimberly-Clark Corp., ___ N.C. App. ___, 724
S.E.2d 552 (2012), the plaintiff filed a complaint alleging,
inter alia, “compensatory damages for emotional distress and/or
pain and suffering.” ___ N.C. App. at ___, 724 S.E.2d at 554.
The defendant filed a motion to compel discovery on several
issues, including the plaintiff’s physical and mental health.
Id. The trial court specifically found that the plaintiff had
placed her mental and emotional health at issue both by
asserting a claim for infliction of emotional distress and by
seeking emotional distress damages in other causes of action.
Id. at ___, 724 S.E.2d at 555. The trial court then allowed the
defendant’s motion to compel discovery regarding the plaintiff’s
physical and mental health for the five years prior to service
of the requests. Id. This Court held that the trial court did
not abuse its discretion in allowing discovery of the
plaintiff’s records of her physical and mental health. Id. at
___, 724 S.E.2d at 556.
Plaintiff cites Iadanza v. Harper, 169 N.C. App. 776, 611
S.E.2d 217 (2005) to support his assertion that his NC PHP
records are irrelevant to his claims for emotional distress
damages. In Iadanza, the plaintiff filed a complaint seeking
compensatory and punitive damages for professional negligence,
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breach of fiduciary duty, IIED, and NIED. 169 N.C. App. at 777,
611 S.E.2d at 220. The defendant moved for partial summary
judgment on the issue of actual damages, and the trial court
granted the defendant’s motion. Id. at 778, 611 S.E.2d at 220.
On appeal, the defendant argued that the plaintiff needed proof
of severe emotional distress to prevail in her claim for pain
and suffering damages. Id. at 780, 611 at 221. This Court
rejected the defendant’s argument, holding that a plaintiff need
not prove the severe emotional distress as required by claims
for IIED or NIED in order to prove pain and suffering damages.
Id. (citation omitted). However, this Court also noted that a
plaintiff must prove his cause of action before being entitled
to all damages, including pain and suffering, that derive from
the cause of action. Id.
Plaintiff concedes that he has the burden of proof of
establishing emotional distress in pain and suffering damages.
Plaintiff is also correct that damages for pain and suffering
are recoverable without proof of severe emotional distress as
required for claims of IIED and NIED. Iadanza, 169 N.C. App. at
780, 611 S.E.2d at 221-22. Plaintiff contends that his three
week participation in the program at PRC and his regular visits
with Dr. Wagaman did not constitute treatment, that he has never
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been diagnosed with a mental or emotional disorder, and that
there are no supporting documents. However, plaintiff appears
to misunderstand the nature of defendant’s request, and his
assertions, that his medical records are irrelevant to the
action because he has not been diagnosed with a severe emotional
condition, are misplaced. Defendant does not contend that
plaintiff must prove severe emotional distress. Instead,
defendant’s discovery requests merely sought proof of
plaintiff’s alleged damages as related to the alleged emotional
distress.
In the instant case, plaintiff specifically claimed damages
related to emotional distress, alleging as part of several
causes of action that “[a]s a direct and proximate result of
Defendants’ actions and omissions, Plaintiff suffered, and
continues to suffer, significant harm to his reputation,
emotional distress, economic loss and other damages.” In
addition, plaintiff specifically alleged in his claim for civil
conspiracy that defendant’s “actions and conduct in this
conspiracy were designed to bring great harm and damage to
Plaintiff by causing damage: to his reputation; severe economic
and financial loss; severe emotional distress, and loss of
Plaintiff’s medical license.” Defendant sought copies of
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plaintiff’s records from NC PHP, PRC, and from Dr. Wagaman, a
professional psychologist. Plaintiff did not dispute that he
had participated in the PRC program or that he had visited Dr.
Wagaman on several occasions. Plaintiff did not assert any type
of privilege in his answers to discovery until defendant
requested releases for these records.
At the hearing, the trial court reviewed plaintiff’s
complaint and voluntary dismissal of his claims for IIED and
NIED, plaintiff’s answers to the pertinent interrogatories, and
excerpts from plaintiff’s deposition in which he answered
questions regarding the names of his providers and the lengths
of his participation in the programs. After hearing counsel’s
arguments regarding reasons plaintiff’s records were not
discoverable, the trial court also ordered an in camera review
of the records. Subsequent to the in camera review, the trial
court entered an order finding that plaintiff was indeed seeking
emotional distress damages in conjunction with his remaining
claims, and that as a result plaintiff had placed his mental
health and history at issue. The trial court also found that
plaintiff had failed to assert any privilege in his responses to
defendant’s interrogatories. The trial court then concluded
that because plaintiff had placed his mental health and history
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at issue by virtue of his claims for emotional distress damages,
his medical records were “plainly relevant to his claims for
emotional distress damages, and Plaintiff has waived any
privilege that might otherwise shield his medical records from
being discovered,” pursuant to both Young and Mims. The trial
court also noted plaintiff’s failure to assert any privilege,
concluding that any claim of privilege had been waived on that
ground, as well. The record indicates that the trial court
considered evidence and arguments from both parties, and
conducted an in camera review of the documents before entering
its order. Therefore, the trial court did not abuse its
discretion in concluding that plaintiff had waived his
privilege.
Plaintiff also argues that the trial court erred in
concluding that the statutory privilege afforded to the NC PHP
does not extend to other providers. However, because the trial
court did not abuse its discretion in concluding that plaintiff
had waived any claim of privilege, we need not address this
argument.
IV. Conclusion
Plaintiff asserts that the trial court’s findings were
unsupported by the evidence, and that the court’s conclusions
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were not supported by the findings. However, the record
indicates otherwise. We find no evidence that the trial court’s
order was “manifestly unsupported by reason or [was] so
arbitrary that it could not have been the result of a reasoned
decision.” Midkiff, 204 N.C. App. at 24, 693 S.E.2d at 175.
Therefore, we affirm the order of the trial court.
Affirmed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).