Ray v. B. Keith Forgy, M.D., P.A.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-236

Filed: 16 February 2016

Burke County, No. 04 CVS 1291

The Estate of DONNA S. RAY, by THOMAS D. RAY and ROBERT A. WILSON, IV,
Administrators of the Estate of DONNA S. RAY, and THOMAS D. RAY, individually,
Plaintiffs,

v.

B. KEITH FORGY, M.D., P.A., Individually and as Agent/Apparent Agent of Grace
Hospital, Inc., GRACE HEALTH CARE SYSTEM, INC., BLUE RIDGE HEALTH
CARE SYSTEMS, INC., CAROLINAS HEALTH CARE SYSTEM, INC., AND AS AN
AGENT/APPARENT AGENT, EMPLOYEE AND SHAREHOLDER OF MOUNTAIN
VIEW SURGICAL ASSOCIATES, AND GRACE HOSPITAL, INC., GRACE
HEALTHCARE SYSTEM, INC., BLUE RIDGE HEALTHCARE SYSTEM, INC.,
AND/OR CAROLINAS HEALTHCARE SYSTEM, INC., Defendants.

Appeal by defendants from order entered 19 November 2014 by Judge Forrest

Donald Bridges in Burke County Superior Court. Heard in the Court of Appeals

23 September 2015.

Pinto Coates Kyre & Bowers, PLLC, by Paul D. Coates and Jon Ward, for
plaintiff-appellees.

Roberts & Stevens, P.A., by Phillip T. Jackson and Ann-Patton Hornthal, for
defendant-appellants Grace Hospital, Inc., Blue Ridge HealthCare System,
Inc., Grace HealthCare System, Inc., and Carolinas HealthCare System, Inc.

McCULLOUGH, Judge.

Grace Hospital, Inc., Blue Ridge Healthcare System, Inc., Grace HealthCare

System, Inc., and Carolinas HealthCare System, Inc. (hereinafter referred to as the

“hospital defendants”) appeal from an order of the trial court, denying in part and
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Opinion of the Court

granting in part, their motion for a protective order and plaintiffs’ motion to compel.

For the reasons stated herein, we reverse the order of the trial court.

I. Background

On 25 August 2004, plaintiffs for the Estate of Donna S. Ray, by Thomas D.

Ray and Robert A. Wilson, IV, administrators of the Estate of Donna S. Ray, and

Thomas D. Ray, individually, filed a complaint against defendants B. Keith Forgy,

M.D., P.A., (“Dr. Forgy”) Individually and as Agent/Apparent Agent of Grace

Hospital, Inc., and/or Grace Healthcare System Inc., and/or Blue Ridge Healthcare

System Inc., and/or Carolinas Healthcare System Inc., and as an Agent/Apparent

Agent, Employee and Shareholder of Mountain View Surgical Associates (“Mountain

View”), and Grace Hospital, Inc., and/or Grace Healthcare System, Inc., and/or Blue

Ridge Healthcare System, Inc., and/or Carolinas Healthcare System, Inc. In this

medical malpractice suit, plaintiffs alleged that from 12 August 2003 through

16 September 2003, Donna S. Ray was a patient of Mountain View Surgical

Associates and was in the care of its employee, Dr. Forgy. Plaintiffs further alleged

that from August 7 through 16, 2003, and September 10 through 16, 2003, Donna S.

Ray was a patient admitted to the hospital defendants and in the care of their

employees, servants, or agents. Plaintiffs alleged that defendants’ negligent acts

caused the suffering and injuries of Donna S. Ray and Thomas D. Ray and

proximately caused the death of Donna S. Ray.

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On 15 November 2007, the hospital defendants filed a motion for summary

judgment. On 20 November 2007, Dr. Forgy and Mountain View filed a motion for

summary judgment. On 21 December 2007, the trial court entered summary

judgment in favor of the hospital defendants. On 6 January 2008, the trial court

denied Dr. Forgy and Mountain View’s motion for summary judgment.

On 16 January 2008, plaintiffs entered notice of appeal to our Court from the

21 December 2007 order of the trial court, entering summary judgment in favor of

the hospital defendants. On 3 March 2009, our Court dismissed plaintiffs’ appeal as

interlocutory. Estate of Ray v. Keith Forgy, M.D., P.A., 195 N.C. App. 597, 473 S.E.2d.

799, COA 15-236 (9 March 2009) (unpub.), available at 2009 WL 513009 (“Ray I”).

Following this Court’s decision in Ray I, plaintiffs, Dr. Forgy, and Mountain

View filed a joint motion to submit their case to binding arbitration, which the trial

court granted on 6 January 2011. Two of three arbitrators concluded that Dr. Forgy

and Mountain View were liable to the Estate of Donna S. Ray in the amount of $4

million. The panel of arbitrators unanimously denied the claim of Thomas D. Ray,

individually, for loss of consortium. On 1 May 2012, the trial court entered the

arbitration award as a final judgment.

On 18 May 2012, the hospital defendants filed notice of appeal to our Court.

In an opinion filed 7 May 2013, our Court held that the trial court did not err in

granting summary judgment in favor of the hospital defendants on the theory of

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apparent agency. However, our Court held that the trial court erred by granting

summary judgment in favor of the hospital defendants on the theory of corporate

negligence. Estate of Ray v. Forgy, 227 N.C. App. 24, 744 S.E.2d 468 (2013) (“Ray

II”). The hospital defendants appealed the decision in Ray II to the North Carolina

Supreme Court but the North Carolina Supreme Court denied their petition for

discretionary review on 18 December 2013. Estate of Ray v. Forgy, 367 N.C. 271, 752

S.E.2d 475 (2013).

On 12 May 2013, plaintiffs moved for partial summary judgment on the issues

of Dr. Forgy and Mountain View’s “negligence in this case and the damages resulting

therefrom as set forth in the Arbitration Award and Final Judgment in this case.”

On 2 July 2014, the trial court entered an order of partial summary judgment in favor

of plaintiffs, holding that the hospital defendants were precluded from “contesting or

otherwise litigating the issues of the negligence of [Dr. Forgy] and Mountain View[]

and the Corporate Defendants are likewise precluded from contesting or otherwise

litigating the amount of damages as reflected in the Court’s prior judgment of

May 1, 2012[.]” The order provided that “[t]he only issue remaining for trial shall be

the negligence of the corporate defendants.”

On 1 August 2014, the hospital defendants filed a motion for summary

judgment. The trial court denied the hospital defendants’ motion for summary

judgment on 18 September 2014. The hospital defendants appealed from the

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18 September 2014 order, denying their motion for summary judgment, to our Court.

Our Court dismissed this appeal on 3 June 2015. (“Ray III”).

During this same time period, on 5 June 2014, plaintiffs filed a motion to

compel, seeking the production of all insurance policies covering the hospital

defendants for acts of negligence and medical malpractice. Plaintiffs served

interrogatories to the hospital defendants on 11 July 2014. Also on 11 July 2014,

plaintiffs filed a request for production of documents to the hospital defendants.

Plaintiffs sought documents regarding the following: the complete file relating to Dr.

Forgy’s malpractice insurance coverage from 1991 to 2004; all documents regarding

the re-credentialing of Dr. Forgy at Grace Hospital from 2001 through 2004; all

documents relating to Dr. Forgy’s malpractice insurance coverage from any source;

and copies of all queries made to the National Practitioner Database by the hospital

defendants regarding Dr. Forgy and responses from the National Practitioner

Database to the hospital defendants. Plaintiffs also filed another motion to compel

responses to deposition questions propounded in 2007 on 11 July 2014.

In response to plaintiffs’ discovery requests, on 21 July 2014, Michelle R.

Minor, the Director of Medical Staff Services for Blue Ridge HealthCare Hospitals,

Inc. (“Blue Ridge”), and Thomas Eure, the corporate designee for Grace Hospital, Inc.

and Blue Ridge HealthCare System, Inc., provided affidavits for the hospital

defendants. On 21 July 2014, the hospital defendants made a motion for an in camera

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review of Sealed Exhibit 1 of both Minor and Eure’s affidavits. The motion stated

that Sealed Exhibit 1 of both affidavits contained information that was privileged,

confidential, or protected from discovery under State law or Federal law and

regulations. Specifically, the motion argued that Sealed Exhibit 1 of both affidavits

requested information that was privileged under N.C. Gen. Stat. §§ 131E-76(5), 131E-

101(8), 131E-107, 90-21.22A, and not discoverable pursuant to N.C. Gen. Stat. §§

131E-95(b), 131E-107, 90-21.22A(c), or any other relevant statute.

On 11 August 2014, the hospital defendants served their responses to

plaintiffs’ interrogatories and request for production of documents. Their responses

incorporated a privilege log containing a description of each document contained in

Sealed Exhibit 1.

On 15 August 2014, the hospital defendants submitted another affidavit from

Michelle R. Minor. Minor testified that the Sealed Exhibit 1 was the complete file of

Dr. Forgy, containing the records and material produced by and/or considered by the

Medical Review Committees of the Grace Hospital Medical Staff. Minor also testified

to the following, in pertinent part:

13. Sealed Exhibit 1 contains documents,
correspondence, evaluations, and reports pertaining to the
proceedings, including records and materials produced by
the Medical Review Committees and considered by the
medical review committee that are subject to the protection
of N.C. Gen. Stat. § § 131E-95 and 90-21.22A.

14. Sealed Exhibit 1 contains documents including

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correspondence to and from the Medical Review
Committees and the Hospital Attorneys that are subject to
the attorney client privilege and work product doctrine.

15. Sealed Exhibit 1 contains documents and
information from the National Practitioner’s Data Bank
(“NPDB”) which is confidential and protected from
discovery pursuant to 42 USC § 11137(b); 45 C.F.R. § 60, et
seq. As the Medical Staff Director, I was responsible for
overseeing the Medical Review Committees’ requests for
information from the NPDB and their responses. Based on
the contents of Sealed Exhibit 1, the Medical Review
Committees made timely queries regarding Dr. Forgy with
the NPDB pursuant to the NPDB regulations.

16. To the extent that Sealed Exhibit 1 also contains
documents and information regarding the North Carolina
Physician Health Program and physician referral
programs, any such items are confidential pursuant to N.C.
Gen. Stat. [§] 90[-]21.22(e) and not subject to discovery or
subpoena in a civil case. Such material includes peer
review activities including investigation, review and
evaluation of records, reports and complaints, litigation,
and other information relating to the North Carolina
Physician Health Program for impaired physicians.

17. Sealed Exhibit 1 also contains Protected Health
Information (“PHI”), including but not limited to surgical
reports, quality review reports, and complete medical
record files of patients, and other documents that contain
identifiable patient health information of patients other
than the Plaintiff that are subject to protection under the
Health Insurance Portability and Accountability Act of
1996, 45 C.F.R. § 160, et seq. A covered entity, such as Blue
Ridge HealthCare Hospitals, Inc., may only disclose
unidentifiable PHI if notice requirements under 45 C.F.R.
§ 164.512(e) [are met], including that the patients be
notified and that the requesting party secure a protective
order.

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18. Exhibit “B” hereto is the Privilege Log pertaining to
the documents contained in Sealed Exhibit 1 and provides
the title or description of the documents, the author, the
recipients, and the date of the documents contained
therein. Said Privilege Log was previously provided to
Plaintiff’s counsel via e-mail and facsimile on
August 12, 2014.

On 10 October 2014, the hospital defendants filed a motion to supplement the

amended privilege log which included sixteen (16) additional log entries. Following

a hearing held at the 10 October 2014 session of Burke County Superior Court, the

trial court entered an order, denying in part and granting in part the hospital

defendants’ motion for a protective order and plaintiffs’ motion to compel on

19 November 2014. The 19 November 2014 order stated that the hospital defendants

should provide to plaintiffs 161 log entries out of the 330 log entries contained in the

Sealed Exhibit 1 and Supplemental Sealed Exhibit 1 (hereinafter the “subject

documents”). The trial court ordered that the hospital defendants need not produce

54 log entries. The hospital defendants were ordered to provide plaintiffs a summary

specifying the dates on which the information was requested as to log 276. Lastly,

the trial court issued a qualified protective order authorizing the disclosure of log 305

to plaintiffs.

On 19 November 2014, the hospital defendants filed notice of appeal from the

19 November 2014 order denying in part and granting in part the hospital defendant’s

motion for a protective order and plaintiffs’ motion to compel.

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II. Discussion

A. Interlocutory Appeal

As a preliminary matter, we note that the 19 November 2014 order is an

interlocutory order. “An 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.” Stanford v. Paris, 364

N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (citation omitted). “Generally, there is no

right of immediate appeal from interlocutory orders and judgments.” Sharpe v.

Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). However,

[a] party may appeal an interlocutory order under two
circumstances. First, the trial court may certify that there
is no just reason to delay the appeal after it enters a final
judgment as to fewer than all of the claims or parties in an
action. Second, a party may appeal an interlocutory order
that “affects some substantial right claimed by the
appellant and will work an injury to him if not corrected
before an appeal from the final judgment.”

Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 383, 677 S.E.2d 203, 206 (2009)

(citations omitted).

Relying on Hammond v. Saini, 229 N.C. App. 359, 748 S.E.2d 585 (2013), the

hospital defendants argue that because the hospital defendants objected to plaintiffs’

discovery requests based on the peer review privilege statutes and the Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”), the

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19 November 2014 order affects a substantial right that might be lost absent

immediate appeal. In Hammond, our Court held that:

[a]n 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. 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. For this reason, 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.

Id. at 362-63, 748 S.E.2d at 588 (citation and quotation marks omitted). Accordingly,

we hold that the 19 November 2014 order affects a substantial right and is

immediately appealable to this Court.

B. The Medical Review Privilege

The sole issue on appeal is whether the trial court erred in compelling the

hospital defendants to disclose the subject documents to plaintiffs. First, the hospital

defendants argue that all subject documents are protected from discovery by N.C.

Gen. Stat. § 131E-95. We agree.

“Whether or not the party’s motion to compel discovery should be granted or

denied is within the trial court’s sound discretion and will not be reversed absent an

abuse of discretion.” Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d

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316, 318-19 (2007) (citation omitted). However, “[o]n appeal from a trial court’s

discovery order implicating the medical review privilege, this Court review[s] de novo

whether the requested documents are privileged under N.C. Gen. Stat. § 131E-95(b).”

Hammond, 229 N.C. App. at 365, 748 S.E.2d at 589 (citation and quotation marks

omitted).

The statutes at issue here are contained in the Hospital Licensure Act, codified

as Article 5, Chapter 131E of the General Statutes (“the Act”). Section 95 of the

Hospital Licensure Act “creates protection for medical review committees in civil

actions against hospitals.” Id. at 363-64, 748 S.E.2d at 588 (citation omitted). Section

95 “protects from discovery and introduction into evidence medical review committee

proceedings and related materials because of the fear that external access to peer

investigations conducted by staff committees stifles candor and inhibits objectivity.”

Shelton v. Morehead Memorial Hospital, 318 N.C. 76, 82, 347 S.E.2d 824, 828 (1986)

(citation and internal quotation marks omitted). “It is for the party objecting to

discovery [of privileged information] to raise the objection in the first instance and he

has the burden of establishing the existence of the privilege.” Bryson v. Haywood

Regional Medical Center, 204 N.C. App. 532, 536, 694 S.E.2d 416, 420 (2010) (citation

omitted).

N.C. Gen. Stat. § 131E-95 provides as follows, in pertinent part:

(b) The proceedings of a medical review committee, the
records and materials it produces and the materials it

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considers shall be confidential and not considered public
records within the meaning of G.S. 132-1 . . . and shall not
be subject to discovery or introduction into evidence in any
civil action against a hospital . . . which results from
matters which are the subject of evaluation and review by
the committee. . . . However, information, documents, or
records otherwise available are not immune from discovery
or use in a civil action merely because they were presented
during proceedings of the committee.

N.C. Gen. Stat. § 131E-95(b) (2002).

By its plain language, N.C. Gen. Stat. § 131E-95 creates
three categories of information protected from discovery
and admissibility at trial in a civil action: (1) proceedings
of a medical review committee, (2) records and materials
produced by a medical review committee, and (3) materials
considered by a medical review committee.

Woods v. Moses Cone Health System, 198 N.C. App. 120, 126, 678 S.E.2d 787, 791-92

(2009). “[D]ocuments and information which are otherwise immune from discovery

under [N.C. Gen. Stat.] § 95 do not . . . lose their immunity because they were

transmitted to persons outside the medical review committee.” Id. at 127-28, 678

S.E.2d at 792 (citation omitted).

N.C. Gen. Stat. § 131E-76(5) in turn defines “medical review committee” as “a

committee . . . of a medical staff of a licensed hospital . . . which is formed for the

purpose of evaluating the quality, cost of, or necessity for hospitalization or health

care, including medical staff credentialing.” N.C. Gen. Stat. § 131E-76(5) (2002).

The hospital defendants maintain that the medical staff at Grace Hospital, Inc.

(“Grace”) created medical review committees (“MRC”) that fit within the meaning of

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the Act and that Blue Ridge maintained these MRCs after the merger of Valdese

General Hospital, Inc. and Grace. In response to plaintiffs’ 11 July 2014 discovery

requests, the hospital defendants filed the affidavit of Michelle Minor on

21 July 2014. Minor testified that she was the Director of Medical Staff Services for

Blue Ridge. The hospital defendants also filed a second affidavit from Minor on

15 August 2014, in which she testified to the following, in pertinent part:

6. The Medical Staff of Grace Hospital, Inc. created a
Medical Review Committee(s), as that term is defined in
N.C. Gen. Stat. § 131E-76 and/or N.C. Gen. Stat. § 90-
21.22A, for the purpose of credentialing or re-credentialing
physicians and for the purpose of reviewing performance of
physicians on staff at Grace Hospital. The Medical Review
Committees of the Medical Staff of Grace Hospital are
identified in Section 7 of the Medical Staff Bylaws. The
2001 and 2003 Medical Staff Bylaws of Grace Hospital, Inc.
are Exhibits F and G to the 15 November 2007 Affidavit of
Thomas Eure and also Exhibit A to the 21 July 2014
Affidavit of Michelle Minor are incorporated herein.

7. The purpose of the Medical Staff Committees listed
in Section 7 of the 2001 and 2003 versions of the Medical
Staff Bylaws included evaluating the quality, cost of, or
necessity for hospitalization or health care, including
medical staff credentialing. Specifically the three medical
review committees listed in this paragraph and described
in Section 7 of the 2001 and 2003 versions of the Medical
Staff Bylaws were formed for the purpose of evaluating the
quality, cost of, or necessity for hospitalization or health
care, including medical staff credentialing.

8. During and after the merger [(Blue Ridge was the
surviving corporation after Valdese General Hospital, Inc.
was merged into Grace Hospital, Inc.)] . . ., the Medical
Staff of Blue Ridge HealthCare Hospitals, Inc., including

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Grace Hospital maintained Medical Review Committees,
as that term is defined in N.C. Gen. Stat. § 131E-76 and/or
N.C. Gen. Stat. § 90-21.22A, for the purpose of
credentialing and re-credentialing physicians on staff at
Blue Ridge HealthCare Hospitals, Inc.

9. The Medical Staff Bylaws attached hereto as Exhibit
A, provided that the Medical Review Committees in
existence at Grace Hospital at the time relevant to this
lawsuit, included but were not limited to the following: (a)
The Executive Committee; (b) The Credentials
Subcommittee of the Executive Committee; and (c) The
Quality Improvement Committee. The purpose of the
Medical Staff Committees listed in Section 7 of the 2001
and 2003 versions of the Medical Staff Bylaws attached
hereto as Exhibit “A” included evaluating the quality, cost
of, or necessity for hospitalization or health care, including
medical staff credentialing.

After thoroughly reviewing the medical staff bylaws of Grace, we agree with

the hospital defendants that the MRCs created by Grace and maintained by Blue

Ridge are “medical review committees” within the meaning of the Act. Plaintiffs do

not challenge this classification.

The hospital defendants argue that Minor’s affidavit establishes that the

subject documents, maintained by Grace’s MRCs contain “records and materials

produced by and/or considered by the Medical Review Committees of the Grace

Hospital Medical Staff.” Accordingly, the hospital defendants assert that the subject

documents fall within at least one of the three categories of information protected by

N.C. Gen. Stat. § 131E-95. Minor’s 15 August 2015 affidavit provided as follows, in

pertinent part:

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10. As Director of Medical Staff Services at Blue Ridge
HealthCare Hospitals, Inc., I am primarily responsible for
overseeing the administrative functions of these Medical
Review Committees, including but not limited to managing
and overseeing Medical Review Committee
correspondence, document production, requests for
information from insurance carriers, other hospitals or the
National Practitioners Data Bank, as well as maintenance
of the credentialing files for physicians on the medical staff
and assistance with the Medical Review Committee
proceedings including peer review, quality control and
credentialing and re-credentialing processes.

11. The document which is in camera Sealed Exhibit 1
to the Minor Affidavit filed on 21 July 2014, is the complete
file of Dr. Forgy that contains the records and materials
produced by and/or considered by the Medical Review
Committees of the Grace Hospital Medical Staff described
in the preceding paragraphs as it relates to Dr. Forgy. The
document which is in camera Sealed Exhibit 1 will be
provided to the Court for in camera inspection and is
incorporated herein.

12. I have reviewed and I am familiar with the
documents contained in Sealed Exhibit 1.

13. Sealed Exhibit 1 contains documents,
correspondence, evaluations, and reports pertaining to the
proceedings, including records and materials produced by
the Medical Review Committees and considered by the
medical review committee that are subject to the protection
of N.C. Gen. Stat. § § 131E-95 and 90-21.22A.

(emphasis added).

Plaintiffs argue that Minor’s affidavit is insufficient to establish that all 330

log entries ordered to be produced by the trial court are privileged pursuant to N.C.

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Gen. Stat. § 131E-95. Plaintiffs contend that Minor’s affidavit is conclusory and rely

on Hammond v. Saini, 229 N.C. App. 359, 748 S.E.2d 585 (2013), for their arguments.

In Hammond, the patient plaintiff filed a negligence action against multiple

medical defendants. Id. at 361, 748 S.E.2d at 587. The defendants objected to the

plaintiff’s discovery requests based on, inter alia, medical review privilege. Id. The

Hammond Court held that the medical defendants failed to demonstrate that their

“Root Cause Analysis Team” qualified as an MRC pursuant to N.C. Gen. Stat. § 131E-

76(5). Id. at 366, 748 S.E.2d at 590. The Hammond Court further held that even

assuming, arguendo, that the defendants could establish that the “Root Cause

Analysis Team” was an MRC, the defendants would have been required to present

evidence tending to show that the disputed documents were among the three

categories of protected information pursuant to N.C. Gen. Stat. § 131E-95. Id. at 367,

478 S.E.2d at 590. The Court stated as follows:

[T]hese are substantive, not formal, requirements. Thus,
in order to determine whether the peer review privilege
applies, a court must consider the circumstances
surrounding the actual preparation and use of the disputed
documents involved in each particular case. The title,
description, or stated purpose attached to a document by
its creator is not dispositive, nor can a party shield an
otherwise available document from discovery merely by
having it presented to or considered by a quality review
committee.

Id. at 367, 748 S.E.2d at 590-91 (citation omitted). Our Court noted that the

defendants failed to submit any evidence regarding who produced or prepared a

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challenged document, the “RCA Report.” The RCA Report identified the event that

is the subject of the report and the members of the team but did not list the

document’s author. The defendants, relying on an affidavit, argued that the affidavit

established that the RCA Report was produced by the RCA Team. Id. at 367, 748

S.E.2d at 591. However, the affidavit only stated that “ ‘[a] Root Cause Analysis

Report was prepared[,]’ . . . neither identif[ying] the RCA Team members –

individually or collectively – as the author of the RCA Report nor otherwise

reveal[ing] the document’s author.” Id. The Court also rejected the defendants’

assertions that “Risk Management Worksheets” and meeting notes were privileged

because it was not clear who prepared them. Id. at 367-68, 748 S.E.2d at 591. The

Court held that the defendants failed to sustain their burden of proving that the

documents were privileged under N.C. Gen. Stat. § 131E-95 and stated that “[t]he

mere submission of affidavits by the party asserting the medical review privilege does

not automatically mean that the privilege applies. Rather, such affidavits must

demonstrate that each of the statutory requirements concerning the existence of the

privilege have been met.” Id. at 369, 748 S.E.2d at 592.

We find Hammond distinguishable from the circumstances of the present case.

In Hammond, the affidavit produced by the defendants failed to demonstrate that

each of the statutory requirements concerning the existence of the privilege under

N.C. Gen. Stat. § 131E-95 were met. Here, the hospital defendants presented Minor’s

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affidavits and the Medical Staff bylaws of Grace to establish that their MRCs

qualified as MRCs pursuant to the meaning contemplated in N.C. Gen. Stat. § 131E-

76(5). Minor’s affidavit also explicitly stated that the subject documents contained

“the records and materials produced by and/or considered by” the MRCs of Grace.

Significantly, Minor’s 15 August 2015 affidavit also incorporated a detailed privilege

log of all the documents in Sealed Exhibit 1. This privilege log included a description

of each document, the author or source of each document, the date of the document,

and the recipient of the document. The privilege log established that the subject

documents were records and materials produced by the MRCs of Grace and/or

materials considered by the MRCs of Grace. Having carefully reviewed the subject

documents, we are satisfied that the hospital defendants have fulfilled their burden

of demonstrating that the subject documents are privileged pursuant to N.C. Gen.

Stat. § 131E-95.1 Accordingly, we hold that the trial court erred by ordering the

hospital defendants to produce the subject documents to plaintiffs and reverse the

19 November 2014 order of the trial court.

C.

1 We note that “information, in whatever form available, from original sources other than the
medical review committee is not immune from discovery or use at trial merely because it was presented
during medical review committee proceedings; neither should one who is a member of a medical review
committee be prevented from testifying regarding information he learned from sources other than the
committee itself, even though that information might have been shared by the committee.” Shelton,
318 N.C. at 83, 347 S.E.2d at 829 (emphasis added).

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The hospital defendants argue that portions of the subject documents are

protected from disclosure by N.C. Gen. Stat. § 90-21.22, that portions of the subject

documents are protected pursuant to N.C. Gen. Stat. § 8-53, and that portions of the

subject documents are protected under HIPAA. Based on our dispositive holding

above, we do not find it necessary to reach the hospital defendants’ remaining

arguments.

III. Conclusion

We reverse the 19 November 2014 order of the trial court, ordering the hospital

defendants to produce the subject documents to plaintiffs.

REVERSED.

Judges STEPHENS and ZACHARY concur.

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