Summary
laying out rule for implied waiver on an issue where defendant had never stated an objection on the ground argued on appeal
Summary of this case from Dunhill Holdings, LLC v. LindbergOpinion
No. 9112SC187
Filed 7 January 1992
1. Evidence and Witnesses 2658 (NCI4th) — medical records — objection on grounds of relevance — privilege waived When plaintiff requested defendant's medical records, defendant impliedly waived his alleged privilege because he objected to the request, not on the ground of privilege, but on the ground of relevance. N.C.G.S. 8-53. Am Jur 2d, Trial 426.
2. Automobiles and Other Vehicles 697 (NCI4th) — identity of driver — defendant's medical records excluded — no error In an action to recover for injuries sustained by plaintiff in an automobile accident, plaintiff was not entitled to a new trial based on the trial court's alleged abuse of discretion in finding that defendant's medical records contained no relevant information on who was driving for purposes of discovery, since in light of the uncontroverted facts that neither party could remember who had been driving at the time of the accident, the plaintiff was found outside the driver's door, the defendant was found in the passenger's seat, the passenger's seat was separated from the driver's seat by a console, and the passenger's door was "jammed shut," plaintiff did not show that a different result would have likely occurred had the trial court not committed the alleged error. N.C.G.S. 1A-1, Rule 26 (b). Am Jur 2d, Automobiles and Highway Traffic 996. Proof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident. 32 ALR2d 988.
APPEAL by plaintiff from order entered 23 February 1990 by Judge E. Lynn Johnson and order entered 2 November 1990 by Judge Gregory A. Weeks in CUMBERLAND County Superior Court. Heard in the Court of Appeals 14 November 1991.
Rand, Finch Gregory, P.A., by Thomas Henry Finch, Jr., for plaintiff-appellant.
Singleton, Murray, Craven Inman, by Rudolph G. Singleton, Jr., for defendant-appellee.
Judge WYNN dissenting.
Plaintiff appeals from orders entered 23 February 1990 and 2 November 1990 denying his motion to compel the production of the defendant's medical records and denying his motion for a new trial.
In the early morning hours of 13 September 1986, as either the plaintiff or the defendant was driving the defendant's car southward on Graham Road in Cumberland County, North Carolina, the car crossed the center line, struck a driveway embankment, and came to a rest in a yard on the east side of the road. At approximately 1:30 a.m., someone discovered the defendant's wrecked car sitting upright in the yard. The driver's door was open, and the plaintiff was rolling slowly on the driveway about fifteen to twenty feet away from the open driver's door. The defendant was found unconscious and sitting in the passenger's seat. An odor of alcohol was present in the car. A console separated the driver's and passenger's seats. The impact of the wreck damaged the right side of the defendant's car and "jammed shut" the passenger's door. It had to be opened with a five foot long pry bar. Both the plaintiff and the defendant were hospitalized with closed head injuries. Neither person could recall the events leading up to the accident, the accident itself, or which of them had been driving the car at the time of the accident. No one witnessed the accident.
On 6 September 1989, the plaintiff filed a complaint against the defendant alleging that the defendant's negligent driving on 13 September 1986 proximately caused the plaintiff's injuries. On 28 November 1989, the defendant filed an answer denying that he had been driving and alleging as an affirmative defense that if he had been driving, given that the plaintiff knew the defendant was intoxicated, the plaintiff was contributorially negligent for riding in the car with the defendant. On 5 December 1989, the plaintiff served on the defendant a request for production of all the defendant's medical records relating to the defendant's injuries. The defendant objected to the request on the grounds of relevance, prejudice, and burden, and the plaintiff filed a motion to compel the production of the medical records. The trial court ordered the defendant to provide it with the defendant's sealed medical records for an in camera review of them by the trial court. After the trial court reviewed the records, it denied the plaintiff's motion to compel finding "that there is nothing in said medical records providing relevant information as requested by Plaintiff. . . ." Following the correct procedure for in camera review of requested discovery materials when the request is denied, the trial court ordered the defendant's sealed medical records to "be retained in the file for the purpose of appellate review in the event of subsequent appeal." See State v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977); Mack v. Moore, 91 N.C. App. 478, 483, 372 S.E.2d 314, 318 (1988), disc. rev. denied, 323 N.C. 704, 377 S.E.2d 225 (1989).
The case came on for trial at the 15 October 1990 civil session of the Cumberland County Superior Court. Before evidence was taken, the plaintiff made various motions in limine in which he requested, among other things, that the trial court prohibit the defendant from offering any evidence relating to the defendant's injuries, hospitalization, or consumption of alcohol before the accident. In response to this motion, the defendant offered his medical records subject to the deletion of a phrase in them which the defendant characterized as an "assumption" by a physician's assistant. The trial court granted the plaintiff's motion stating that it was bound by the previous discovery ruling on the medical records.
Both parties introduced evidence, and the trial court submitted the issues to the jury. On 26 October 1990, the jury returned a verdict finding that the plaintiff was not injured by the defendant's alleged negligence. The trial court entered a judgment accordingly, and the plaintiff made motions for judgment notwithstanding the verdict, for access to the defendant's medical records, and for a new trial. The trial court denied the plaintiff's motions, and the plaintiff appealed. The plaintiff then made a motion requesting that he be allowed to review the defendant's medical records for his appeal. The trial court denied this motion.
The issue is whether the trial court's alleged abuse of discretion in finding that the defendant's medical records contained no relevant information for purposes of discovery prejudiced the plaintiff requiring a new trial.
The plaintiff argues that because the trial court erred in finding that the defendant's medical records do not contain any relevant information for discovery purposes, he is entitled to a new trial.
North Carolina Gen. Stat. 1A-1, Rule 34 (a) (1990) provides in pertinent part that:
[a]ny party may serve on any other party a request (i) to produce and permit the party making the request . . . to inspect and copy, any designated documents . . . or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26 (b) and which are in the possession, custody or control of the party upon whom the request is served. . . .
This rule "is not, strictly speaking, a discovery procedure. Its purpose is not to discover the existence of documents or other tangible things but to require the production of those known to exist and which can be designated." W. Shuford, North Carolina Civil Practice and Procedure 34-3 (3d ed. 1988). The rule serves to eliminate "strategic surprise," to permit "the issues to be simplified," and to expedite the trial. 8 C. Wright A. Miller, Federal Practice and Procedure 2202 (1970).
"Rule 34 requires that as a prerequisite of production, documents must be (1) `designated,' (2) `within the scope' of Rule 26 (b), and (3) in the `possession, custody, or control' of a party from whom they are sought. The party seeking production must show that these prerequisites are satisfied." Willis v. Duke Power Co., 291 N.C. 19, 31, 229 S.E.2d 191, 199 (1976). The defendant apparently concedes, and we agree, that the plaintiff adequately designated the defendant's medical records in his request for production and that those records were in the defendant's possession, custody, or control. See id. at 34, 229 S.E.2d at 200 (designation); W. Shuford, supra, 34-6, -7 (designation and possession, custody, or control); 8 C. Wright A. Miller, supra, 2210 (possession, custody, or control). The trial court concluded, however, and the defendant argues on this appeal, that the plaintiff did not show that the defendant's medical records fall within the scope of N.C.G.S. 1A-1, Rule 26 (b) (1990).
The scope of discovery as delineated by N.C.G.S. 1A-1, Rule 26 (b) is stated in pertinent part as follows:
Unless otherwise limited by order of the court in accordance with these rules, . . . [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . .
Accordingly, subject to other discovery limitations not applicable here, the scope of discovery under N.C.G.S. 1A-1, Rule 26 (b) is limited only by considerations of privilege and relevance. Stone v. Martin, 56 N.C. App. 473, 476, 289 S.E.2d 898, 900, disc. rev. denied, 306 N.C. 392, 294 S.E.2d 220 (1982); see also N.C.G.S. 1A-1, Rule 26 (b)(3) (1990) (trial preparation materials); N.C.G.S. 1A-1, Rule 26 (b)(4) (1990) (expert testimony); N.C.G.S. 1A-1, Rule 26 (c) (1990) (protective orders); N.C.G.S. 1A-1, Rule 35 (a) (1990) (physical or mental examinations); 8 C. Wright A. Miller, supra, 2007 (scope of discovery limitations). We address these considerations in that order.
Privilege
When the plaintiff requested that the defendant produce his medical records, the defendant did not raise the issue of privilege; rather, he argued that his medical records were irrelevant, prejudicial, and burdensome. Likewise, during arguments on the plaintiff's motions in limine, the defendant stated that the physician-patient "privilege . . . has no application here." On appeal, however, he argues that his medical records are privileged under N.C.G.S. 8-53 (1986), and therefore, because the trial court did not find that disclosure of these records was "necessary to a proper administration of justice," the trial court's order may not be disturbed. See Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 38-39, 125 S.E.2d 326, 331-32 (1962) (where trial court made no finding that admission of privileged hospital records was necessary to proper administration of justice, trial court did not err in excluding them); McGinnis v. McGinnis, 66 N.C. App. 676, 678, 311 S.E.2d 669, 671 (1984) (where trial court made no finding that admission of privileged information was necessary to proper administration of justice, trial court erred in admitting the information).
North Carolina Gen. Stat. 8-53 provides in pertinent part as follows:
No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon. . . . Any resident or presiding judge in the district, either at the trial or prior thereto, . . . may, subject to G.S. 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice.
This qualified statutory privilege applies to requested disclosures whether they are made during discovery or at trial. W. Shuford supra, 26-7; cf. In re Albemarle Mental Health Ctr., 42 N.C. App. 292, 299, 256 S.E.2d 818, 823, disc. rev. denied, 298 N.C. 297, 259 S.E.2d 298 (1979) (trial court may compel disclosure of privileged information prior to trial). "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." 8 C. Wright A. Miller, supra, 2016. A patient may expressly or impliedly waive his physician-patient privilege during discovery and at trial. Id.; Cates v. Wilson, 321 N.C. 1, 14, 361 S.E.2d 734, 742 (1987); Sims, 257 N.C. at 38, 125 S.E.2d at 331 (privilege belongs to patient); cf. Crist v. Moffatt, 326 N.C. 326, 331, 389 S.E.2d 41, 44 (1990) (Supreme Court assumed arguendo that plaintiff had impliedly waived privilege during discovery). Although "[t]he facts and circumstances of a particular case determine whether a patient's conduct constitutes an implied waiver," Crist, 326 N.C. at 331, 389 S.E.2d at 44, a patient impliedly waives his privilege when he does not object to requested disclosures of the privileged information. See id.; Spencer v. Spencer, 70 N.C. App. 159, 165, 319 S.E.2d 636, 642 (1984) (failure to object at trial on grounds of privilege constitutes waiver of objection).
When the plaintiff requested the defendant's medical records, the defendant impliedly waived his alleged privilege because he objected to the request, not on the grounds of privilege, but on the grounds of relevance. Therefore, if such information is relevant for discovery purposes, such information falls within the scope of discovery under N.C.G.S. 1A-1, Rule 26 (b).
Relevance
The test of relevancy under N.C.G.S. 1A-1, Rule 26 (b) differs from the more "stringent test" of relevancy under N.C.G.S. 8C-1, Rule 401 (1988). Willis, 291 N.C. at 34, 229 S.E.2d at 200. Information is relevant for discovery purposes if it is "reasonably calculated to lead to the discovery of admissible evidence. . . ." N.C.G.S. 1A-1, Rule 26 (b)(1) (1990); Willis, 291 N.C. at 34, 229 S.E.2d at 200; Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 314, 248 S.E.2d 103, 106, disc. rev. denied, 295 N.C. 735, 249 S.E.2d 804 (1978). Although this test must be construed liberally, Willis, 291 N.C. at 34, 229 S.E.2d at 200, "the determination of relevance is within the . . . [trial] court's discretion," 4 J. Moore, J. Lucas, G. Grotheer, Moore's Federal Practice 26.56[1] (2d ed. 1991), and as with other discovery orders, may be reversed on appeal only upon a showing of abuse of that discretion. Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 737, 294 S.E.2d 386, 388 (1982). A trial court abuses its discretion when "its actions are manifestly unsupported by reason." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
The plaintiff argues that the defendant's medical records contain relevant information concerning whether the defendant was driving the car at the time of the accident. At no time in the course of this case, however, has the plaintiff been allowed to review the medical records. The plaintiff argues that he was put on notice during the hearing on his motions in limine that the medical records contain this type of information. At the hearing, the defendant offered his medical records subject to the deletion of an alleged "assumption" in them by a physician's assistant. Based upon the defendant's statements during the hearing, the plaintiff suggests that the alleged "assumption" was the following phrase: "patient was driving a car." In fact, the controversial phrase which appears twice in the defendant's medical records reads as follows: "He apparently ran off the road. . . ." Nothing else in the medical records suggests that the defendant was driving the car at the time of the accident. Assuming, without deciding, that the trial court abused its discretion in determining that this phrase was not "reasonably calculated" to lead to the discovery of admissible evidence, we hold that the alleged error did not prejudice the plaintiff. In light of the uncontroverted facts that neither party could remember who had been driving at the time of the accident, the plaintiff was found outside the driver's door, the defendant was found in the passenger's seat, the passenger's seat was separated from the driver's seat by a console, and the passenger's door was "jammed shut," the plaintiff has not shown that a different result would have likely occurred had the trial court not committed the alleged error. N.C.G.S. 1A-1, Rule 61 (1990); Warren v. City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864, disc. rev. denied, 314 N.C. 336, 333 S.E.2d 496 (1985) (appellant must show prejudice for new trial). Accordingly, the trial court's orders are
Affirmed.
Judge PARKER concurs.
Judge WYNN dissents with separate opinion.