Hammond v. Saini

IN THE SUPREME COURT OF NORTH CAROLINA
No. 492PA13
Filed 19 December 2014

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.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous deci-

sion 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.

Patterson Harkavy LLP, by Burton Craige and Narendra K. Ghosh; and Bea-
ver Holt Sternlicht & Courie, P.A., by Mark A. Sternlicht, for plaintiff-
appellee.

McGuireWoods, LLP, by Patrick M. Meacham, Mark E. Anderson, and Mon-
ica E. Webb, for defendant-appellants Wanda Untch, James Bax, and Cum-
berland 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.

JACKSON, Justice.
 HAMMOND V. SAINI

Opinion of the Court

In this case we consider whether certain documents in the possession of the

Cumberland County Health System, Inc. (“CCHS”) are shielded from discovery by

section 131E-95 of the North Carolina General Statutes, which protects “[t]he pro-

ceedings of a medical review committee, the records and materials it produces and

the materials it considers.” N.C.G.S. § 131E-95(b) (2013). Because we conclude

that CCHS failed to demonstrate the existence of a medical review committee with-

in 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.

On 28 September 2011, plaintiff filed a complaint against defendants in Su-

perior Court, Cumberland County. Plaintiff’s complaint alleged that on 17 Septem-

ber 2010, she went to Cape Fear Valley Medical Center for surgery to remove a pos-

sible 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 in-

travenous anesthesia was administered by Victor Kubit, M.D., an anesthesiologist

with Cumberland Anesthesia Associates, P.A. During the surgery, drapes were

placed on plaintiff’s 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 ox-

ygen was “permitted . . . to build up under the . . . drapes” on plaintiff’s face. Ac-

cording to the complaint, the oxygen and the drapes were ignited by an electrocau-

tery device used by Dr. Saini to stop bleeding, and the resulting fire caused first and

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Opinion of the Court

second degree burns and left plaintiff with permanent injuries and scars. As a re-

sult, plaintiff sought damages based upon negligence.

On 2 December 2011, defendants CCHS, Untch, and Bax filed an answer

denying the allegations of negligence.1 Subsequently, plaintiff served interrogato-

ries and requests for production of documents on these defendants. Defendants ob-

jected to some of plaintiff’s discovery requests and argued, inter alia, that N.C.G.S.

§ 131E-95 shielded from discovery: (1) documents titled “Quality Care Control Re-

ports” (“QCC Reports”) prepared by Bax and Stephanie Emanuel; (2) notes taken by

CCHS Risk Manager Harold Maynard; and (3) a document titled “Root Cause Anal-

ysis Report” (“RCA Report”).

Plaintiff 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 “Sentinel

Events and Root Cause Analysis” (“RCA Policy”). In addition, defendants submitted

copies of the documents that they had withheld to the trial court for in camera re-

view. On 18 June 2012, the trial court entered orders granting plaintiff’s motions to

compel discovery. On an interlocutory appeal from these orders, the Court of Ap-

peals affirmed the trial court’s conclusion that N.C.G.S. § 131E-95 did not apply be-

cause defendants had not shown that the withheld documents were part of a medi-

1 The remaining defendants are not parties to this appeal.

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 HAMMOND V. SAINI

Opinion of the Court

cal review committee’s 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’ petition for discretionary review.2

Defendants argue that after the operating room fire that injured plaintiff,

CCHS established a Root Cause Analysis Team (“RCA Team”), which constitutes a

medical review committee pursuant to N.C.G.S. § 131E-76(5). Defendants contend

that as a result, the QCC Reports, Maynard’s notes, and the RCA Report, which al-

legedly were considered or produced by the RCA Team, are protected by N.C.G.S.

§ 131E-95. We disagree.

This 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) (ci-

tation omitted); see also Bryson v. Haywood Reg’l 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), “[t]he proceedings of a medical re-

view committee, the records and materials it produces and the materials it consid-

ers” are shielded from discovery and introduction into evidence in certain civil cas-

es. N.C.G.S. § 131E-95(b). A medical review committee is

2 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 pre-
sented in the petition for discretionary review and are not before this Court. See N.C. R.
App. P. 16(a).

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 HAMMOND V. SAINI

Opinion of the Court

any of the following committees formed for the purpose of
evaluating the quality, cost of, or necessity for hospitali-
zation or health care, including medical staff credential-
ing:

a. A committee of a state or local professional society.

b. A committee of a medical staff of a hospital.

c. 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 sys-
tem.

d. A committee of a peer review corporation or organiza-
tion.

Id. § 131E-76(5) (2013). The party asserting the privilege has the burden to demon-

strate each of its essential elements and cannot meet this burden by mere concluso-

ry 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 estab-

lish the applicability of the definition in subdivision (c), the evidence must set forth

either how the committee was “created” or how the “written procedures” it “op-

erat[es] under” were “adopted.” N.C.G.S. § 131E-76(5)(c); see also Shelton v. More-

head Mem’l Hosp., 318 N.C. 76, 84, 347 S.E.2d 824, 829-30 (1986) (considering

whether a hospital’s 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

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Opinion of the Court

medical staff, and the requirement that a specific officer “be invited to attend” med-

ical staff executive committee meetings).

Here, defendants rely upon Maynard’s affidavit, which states in pertinent

part:

3. The attached CCHS Administrative Policy titled “Sen-
tinel Events and Root Cause Analysis” was in place on
September 17, 2010.

4. Pursuant to this policy, the events related to Ms.
Hammond’s surgery on September 17, 2010, were consid-
ered 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 analy-
sis processes are peer review processes designed to evalu-
ate the quality, cost of, and/or necessity for hospitalization
and/or the providing of health care.

5. In general, the peer review committees established to
deal with sentinel events and prepare a root cause analy-
sis are created by the medical staff and governing board of
CCHS and operate under the attached written proce-
dures, which have been adopted by the medical staff and
governing board of the healthcare system. This was true
on September 17, 2010.

6. 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.
§[ ]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.
§[ ]131E-95.

This affidavit is insufficient to demonstrate that the RCA Team meets the criteria

for a medical review committee as defined by N.C.G.S. § 131E-76(5)(c). Instead, the

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Opinion of the Court

affidavit merely recites the language of the statute and offers the conclusory assur-

ance that each requirement has been satisfied. The affidavit does not provide spe-

cific 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.

Similarly, defendants rely upon the RCA Policy, which does not contain suffi-

cient evidence to demonstrate the applicability of N.C.G.S. §§ 131E-76(5) and

131E-95(b). Nothing about the policy itself indicates that the RCA Team “op-

erat[ed] under” the policy in this investigation. See N.C.G.S. § 131E-76(5)(c). In

addition, it does not appear that the RCA Policy was “adopted by the governing

board or medical staff of” CCHS. See id. The policy states only that it was “ap-

proved by MN” and that it originated in the “Performance Improvement/Patient

Safety” department. No evidence has identified these entities as the governing

board or medical staff of CCHS.

Based 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. § 131E-

76(5). As a result, the trial court did not err by concluding that the QCC Reports,

Maynard’s notes, and the RCA Report are not protected by N.C.G.S. § 131E-95(b).

The decision of the Court of Appeals, except as modified herein, is affirmed as to the

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Opinion of the Court

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.

MODIFIED, AFFIRMED, AND REMANDED.

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