Ann S. SHELTON and Robert F. Shelton, Jr.
v.
MOREHEAD MEMORIAL HOSPITAL, Linda T. Ross, Administratrix of the Estate of Robert J. Ross, M.D., Robert P. Shapiro, M.D., Stuart M. Bergman, M.D. and the Board of Trustees of Morehead Memorial Hospital, including Joseph G. Maddrey, John E. Grogan, James M. Daly, Jr., Roy C. Turner, Joyce Johnson, William O. Stone, Jessie L. Burchell, Garland S. Edwards, William R. Frazier and Gerald James, individually, and the Executive Committee of the Medical Staff of Morehead Memorial Hospital, including Shelton Dawson, M.D., Edward L. Groover, M.D., Barry L. Barker, M.D., David Lee Call, M.D., John R. Edwards, M.D. and James B. Parsons, M.D., individually.
No. 8417SC1214.
Court of Appeals of North Carolina.
August 6, 1985.*501 Graham, Cooke, Miles & Bogan by Donald T. Bogan, Greensboro, for plaintiffs-appellants.
Tuggle, Duggins, Meschan & Elrod, P.A. by Joseph E. Elrod, III, J. Reed Johnston, Jr. and Sally A. Lawing, Greensboro, for defendants-appellees.
JOHNSON, Judge.
Plaintiffs assign error to the trial court's conclusion of law that (1) G.S. 131E-95 bars from discovery the materials, documents, and reports of Medical Review Committees; (2) G.S. 131E-95 bars a former Executive Director of a Hospital from testifying regarding Medical Review Committee proceedings and Board of Trustees proceedings; and (3) there is a common law privilege which bars from discovery hospital or medical staff committee proceedings or documents.
G.S. 131E-76(5) defines a Medical Review Committee as
A Committee of a State or local professional society, of a medical staff of a licensed hospital or a committee of a peer review corporation or organization which is formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing.
The committee charged with medical review function at Morehead Memorial Hospital is the Executive Committee of the Medical Staff which consist of "the officers of the Medical Staff, and the chairmen of all standing committees. The chairman of the Board of Trustees and the Hospital Chief Executive Officer shall be invited to attend meetings of this committee." Bylaws of the Medical and Dental Staff of Morehead Memorial Hospital, April 20, 1978. G.S. 131E-95(b) provides that
the proceedings of a medical review committee, the records and materials it produces and the materials it considers shall *502 be confidential ... and shall not be subject to discovery or introduction into evidence in any civil action against a hospital or a provider of professional health services which results from matters which are the subject of evaluation and review of the committee....
The purpose of the statute is to ensure that members of Medical Review Committees may be candid and objective in peer investigations. The statute represents a legislative choice between medical staff candor and plaintiff's access to evidence. Cameron v. New Hanover Mem,. Hosp., 58 N.C.App. 414, 293 S.E.2d 901, appeal dismissed; cert. denied, 307 N.C. 127, 297 S.E.2d 399 (1982). Plaintiffs argue that the information they seek to discover is not privileged pursuant to 131E-95 since the information did not "[result] from matters which are the subject of evaluation and review of the committee...." Plaintiffs contend that the information held by the Executive Committee of the Medical Staff related to matters of credentials and competence, and that the information they seek to discover relates to a medical malpractice action. This contention is without merit. To allow plaintiffs access to the information compiled by the Executive Committee of the Medical Staff of the Hospital would clearly contravene the language and purpose of G.S. 131E-95. It would discourage the objectivity and candor that the legislature has deemed vital to the peer review process. We hold that the minutes, proceedings, and materials held by the Executive Committee of the Medical Staff of Morehead Memorial Hospital are not discoverable pursuant to G.S. 131E-95.
Plaintiffs sought to discover privileged information from the former Chief Executive Officer (CEO) of Morehead Memorial Hospital by serving him with a subpoena duces tecum. The trial judge properly quashed plaintiffs' subpoena duces tecum. As Chief Executive Officer of the Hospital, Mr. Tinnell was invited to and did attend meetings of the various committees of Morehead Memorial Hospital, including meetings of the Executive Committee of the Medical Staff. The record tends to show that Mr. Tinnell actively participated in the investigation of Dr. Ross as evidenced by a letter from Mr. Tinnell which contained information "reviewed only by our Executive Committee of the Medical Staff." To allow plaintiffs to depose the former CEO of Morehead Memorial Hospital to obtain privileged information that could not be obtained directly from the Hospital would circumvent the legislative intent of G.S. 131E-95. The statute is explicit in its reference to persons in attendance at meetings. "No person who was in attendance at a meeting of the Committee shall be required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings...." For the aforementioned reason, we find no error in the trial judge's order to quash plaintiffs' subpoena duces tecum.
Ancillary to plaintiffs' motion to discover minutes and records of the Executive Committee was a motion to discover the records, minutes and materials of the Board of Trustees. Defendants contend that the Board of Trustees at Morehead Memorial Hospital functions like a Medical Review Committee and therefore proceedings of the Board are privileged pursuant to G.S. 131E-95. We find no merit in this contention. A careful reading of the bylaws of the Medical and Dental Staff of Morehead Memorial Hospital shows that the Board of Trustees and the Executive Committee of the Medical Staff are distinctly different entities which serve different functions. The duties of the Executive Committee of the Medical Staff of Morehead Memorial Hospital include "to receive reports regarding the performance and clinical competence of staff members and as a result of such review to make recommendations for reappointments and renewal of or changes in clinical privileges." Bylaws of the Medical and Dental Staff of Morehead Memorial Hospital, April 20, 1978. The members of the Board of Trustees are not charged with peer review functions. The statute is specifically designed to protect those persons who provide information about their peers in the medical *503 profession. The Board of Trustees does not meet that criterion and is thus not within the scope of G.S. 131E-76(5). Therefore, we hold that the trial court erred in its conclusion that the minutes and records of the Board of Trustees are barred from discovery pursuant to G.S. 131E-95.
The disposition of the first and second assignments of error renders plaintiffs' third assignment of error moot. The common law privilege which plaintiffs assert has been codified in G.S. 131E-95. See discussion of plaintiffs' first assignment of error, supra. Such privilege does not apply to the Board of Trustees since it has been determined that a Board of Trustees is not within the contemplation of G.S. 131E-76(5) which defines a Medical Review Committee.
Affirmed in part.
Reversed in part.
WELLS and COZORT, JJ., concur.