concurring in part and dissenting in part.
I concur in the majority opinion in that plaintiffs claims against Asheville Radiological, MMIC, and Layton, based on the unauthorized release of her films in 1989, are barred by the applicable statutes of limitation.
I respectfully dissent from the majority opinion which holds there are genuine issues of material fact as to plaintiff’s claims arising from the July 1992 release of her films.
No physician-patient privilege existed at common law; therefore, the statutory privilege is to be strictly construed. Sims v. Insurance Co., 257 N.C. 32, 36-37, 125 S.E.2d 326, 329-330 (1962). The patient has the burden of establishing the existence of the privilege and objecting to the discovery of such privileged information in the first instance. Adams v. Lovette, 105 N.C. App. 23, 28, 411 S.E.2d 620, 624, affirmed, 332 N.C. 659, 422 S.E.2d 575 (1992). Further, this privilege is not absolute and may be waived by the patient’s conduct. Id. at 28-29, 411 S.E.2d at 624; see also Cates v. Wilson, 321 N.C. at 14, 361 S.E.2d at 742. In addressing the issue of waiver, our Supreme Court has held:
When . . . the patient breaks the fiduciary relationship with the physician by revealing, or permitting revelation of, the substance of the information transmitted to the physician, the patient has, in effect, determined it is no longer important that the confidences which the privilege protects continue to be protected. Having taken this position, the plaintiff may not silence the physician as to the matters otherwise protected by the privilege.
Cates v. Wilson, 321 N.C. at 15, 361 S.E.2d at 742-743.
Having determined that a patient may waive the physician-patient privilege by “break [ing] the fiduciary relationship with the physician by revealing, or permitting revelation of, the substance of the information transmitted to the physician,” it must now be determined when a patient effectively waives the privilege, and the extent to which the privilege is waived. Id.; see also Collins v. Bair, 268 N.E.2d at 99.
In Cates v. Wilson, supra, our Supreme Court announced that the facts and circumstances of a particular case determine whether a *531patient’s conduct constitutes a waiver of the privilege. Id. at 14, 361 S.E.2d at 742; see also Crist v. Moffatt, 326 N.C. 326, 331, 389 S.E.2d 41, 44 (1990). The Court then elaborated on the general rule by stating that a waiver of the privilege may occur either when: (1) a plaintiff calls the treating physician as a witness and examines him as to her physical condition; (2) a plaintiff fails to object when the opposing party calls the treating physician to testify; or (3) a plaintiff testifies to the communication between her and the physician. Id. at 14, 361 S.E.2d at 742. Further, the Court observed that the privilege could also be waived when the patient “voluntarily goes into detail regarding the nature of [her] injuries and either testifies to what the physician did or said while in attendance.” Id. (Citation omitted).
In his concurring opinion in Cates, Justice (now Chief Justice) Mitchell stated it was time for the Court to recognize an exception to the physician-patient privilege which has already been adopted by the majority of jurisdictions, the patient-litigant exception. Id. at 17, 361 S.E.2d at 744 (Mitchell, J., concurring). That exception recognizes that when a patient files a medical malpractice action against her treating physician in which an essential part of the claim is the existence of a physical ailment, there should be a waiver of the privilege for all communications causally or historically related to that ailment. Id. However, the Court concluded that a waiver had occurred under the facts and circumstances of the case and therefore declined to adopt this exception.
Here, when plaintiff filed the underlying action, she directly put her medical condition at the time of the mammogram procedure at issue. Thereafter, plaintiffs conduct during the course of the underlying action clearly establishes a waiver of her physician-patient privilege. During discovery, plaintiff agreed to provide Dr. Morris with copies of her medical records pertaining to her treatment for breast cancer, including the mammography report and the films, which are an integral part of the mammography report; plaintiff testified in detail during her deposition about the circumstances surrounding the mammogram procedure; plaintiff deposed Dr. Morris in detail about the mammogram procedure and the mammography report; and plaintiff was present when Dr. Williams was examined during his deposition about Dr. Morris’ treatment of plaintiff based on Dr. Williams’ review of the medical records, including the mammography report. Thereafter, during the trial of the underlying action, plaintiff testified as she did in her deposition regarding her medical records and the mammogram procedure, and plaintiff did not object to the testi*532monies of Dr. Morris and Dr. Williams regarding plaintiff’s medical records and the mammogram procedure. All of these facts and circumstances lead to the conclusion that plaintiff never manifested a desire to preserve her physician-patient privilege and thus has waived such privilege as to Dr. Morris.
However, even when a plaintiff waives the physician-patient privilege, “the question remains by what procedures and subject to what controls the exchange of information shall proceed.” Crist v. Moffatt, 326 N.C. at 334, 389 S.E.2d at 46. Here, plaintiff contends that while she “should not be able to hide behind the privilege and use it as a sword,” there should be some control over the discovery process.
As our Supreme Court has recognized, even when a plaintiff waives the privilege, defendants must still utilize the formal discovery methods provided by the North Carolina Rules of Civil Procedure unless the parties consent to an informal discovery method. Id. at 334, 389 S.E.2d at 46.
Here, Dr. Morris ordered the mammogram procedure in connection with his evaluation and treatment of plaintiff. When plaintiff brought the underlying action against Dr. Morris for his alleged failure to properly diagnose her breast cancer, she directly put at issue her condition, thus allowing Dr. Morris to obtain any of her medical records that are relevant to her claim during the discovery process. Thereafter, when plaintiff provided Dr. Morris with copies of her medical records during discovery, and likewise agreed to provide him with her films in connection with her husband’s deposition on 16 July 1992, no further discovery was necessary in order for Dr. Morris to permit Dr. Williams, his expert witness, to review these medical records and films. Therefore, I find that the waiver of the privilege as to Dr. Morris precludes any claims against Asheville Radiology, Dr. Gallagher and Dr. Williams.