An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1063
                        NORTH CAROLINA COURT OF APPEALS

                               Filed:     1 July 2014


CLIFFORD ROBERTS WHEELESS, III,
M.D.,
     Plaintiff

      v.                                       Vance County
                                               No. 11 CVS 859
MARIA PARHAM MEDICAL CENTER, INC.,
     Defendant


      Appeal by      defendant from order           entered 4 April 2013 by

Judge Elaine M. Bushfan in Vance County Superior Court.                       Heard

in the Court of Appeals 20 February 2014.


      The Law Office of Colon & Associates, PLLC, by Arlene L.
      Velasquez-Colon;   and Jeannette Griffith  Congdon,  for
      plaintiff-appellee.

      Womble Carlyle Sandridge & Rice, LLP, by James M. Powell
      and Theresa M. Sprain, for defendant-appellant.


      CALABRIA, Judge.


      Maria    Parham    Medical     Center,    Inc.    (“defendant”)      appeals

from an order compelling defendant to supplement its responses

to discovery.      We reverse.

      Clifford Roberts Wheeless, III, M.D. (“plaintiff”) is an

orthopedic     surgeon      who    held    active      staff   privileges      with
                                           -2-
defendant        until     July   2006.       In    2005,     defendant’s        Medical

Executive Committee (“MEC”) conducted a peer review proceeding

regarding plaintiff’s clinical skills (the “2005 peer review”).

In 2006, defendant initiated a separate peer review proceeding

regarding allegations of plaintiff’s violations of defendant’s

disruptive physician policy (the “2006 peer review”).                         Plaintiff

requested a “fair hearing,” which was scheduled to consider the

allegations of plaintiff’s disruptive behavior.                           Prior to the

date of the fair hearing, the parties negotiated and entered

into a Mediated Settlement Agreement (“MSA”).                      The terms of the

MSA required,         inter alia, that plaintiff request the MEC to

change     his    staff     privileges     from    Active    Staff    to    Consulting

Staff, and that the MEC terminate without further action any and

all   pending         or    contemplated      disciplinary         actions       against

plaintiff.

      In    a    letter     dated    August      2006,    plaintiff       alleged     that

defendant failed to honor his consulting privileges pursuant to

the MSA by refusing to call him in for consults when he was

requested by patients.              Plaintiff requested in the letter that

defendant        take      “whatever      corrective       steps     appear      to    be

necessary” to comply with the MSA.                       Plaintiff again notified

defendant        of   an   alleged     failure     to    comply    with    the   MSA    in
                                            -3-
January 2007, alleging three specific instances similar to those

described     in    the     August        2006    letter.           In   February     2009,

plaintiff     was    contacted       by    the    North     Carolina       Medical    Board

(“NCMB”) regarding an anonymous complaint submitted to the NCMB

by “W. Blower” alleging inappropriate or disruptive behavior on

plaintiff’s        part.          The     “W.     Blower”       allegations       included

references to incidents that were the subjects of the 2005 and

2006 peer reviews.

    On   25    August       2011,       plaintiff     filed     a     complaint     against

defendant     alleging,          inter    alia,     unfair      and      deceptive    trade

practices,     breach       of    contract,       fraud,     civil       conspiracy,    and

intentional     and     negligent         infliction       of    emotional      distress.

After a hearing, the trial court granted summary judgment in

favor of defendant regarding some of plaintiff’s claims.                                The

remaining claims progressed to discovery.

    On 27 March 2012, plaintiff served defendant with a set of

formal   discovery         requests       including    interrogatories,           requests

for production of documents, and requests for admission (the

“First Discovery Request”).                 Defendant responded to the First

Discovery Request on 31 May 2012, objecting to requests for peer

review related materials on the grounds that the information was

privileged pursuant to N.C. Gen. Stat. § 131E-95.                               Plaintiff
                                           -4-
subsequently filed a motion to compel.                     After a hearing, Judge

Robert    H.    Hobgood    (“Judge       Hobgood”)    entered         an   order     on    17

December 2012 upholding defendant’s assertions of the statutory

privilege (“the Hobgood Order”).

     On 4 December 2012, plaintiff filed a motion to compel

regarding defendant’s assertion of the same statutory privilege

in   response      to     questions       about    the     2006       peer     review      in

depositions of three witnesses.                  At a hearing, plaintiff argued

before Judge James E. Hardin (“Judge Hardin”) that the exception

for malice in N.C. Gen. Stat. § 131E-95(a) (2013) should also

apply to the privilege arising under N.C. Gen. Stat. § 131E-

95(b) (2013).          Judge Hardin determined that plaintiff had not

presented       evidence       of   malice     sufficient      to       show     that     the

privilege of N.C. Gen. Stat. § 131E-95 was waived or eliminated.

On 5 February 2013, Judge Hardin entered an order upholding

defendant’s       assertions        of    privilege      regarding         the    specific

details   of     the    2006    peer     review    (“the   Hardin       Order”).          The

Hardin    Order        specifically        found     the    Hobgood          Order      made

determinations regarding the statutory privilege with regard to

interrogatories,         requests        for   production,        and      requests       for

admission.

     On    27    October       2012,     plaintiff    served      a     second     set    of
                                          -5-
requests for admission (“Second RFA”).                     Defendant responded to

the Second RFA on 27 December 2012, again objecting to requests

regarding     the    2006    peer      review    and    defendant’s     peer    review

process on the grounds that such information was not subject to

discovery pursuant to N.C. Gen. Stat. § 131E-95(b).                          Plaintiff

subsequently filed a motion and supplemental motion to determine

the   sufficiency      of    defendant’s         answers    to   the    Second    RFA.

Plaintiff specifically alleged in his supplemental motion that

there   was    evidence       showing      malice       sufficient     to    eliminate

defendant’s privilege.            After a hearing, Judge Elaine M. Bushfan

(“Judge Bushfan”) entered an order on 4 April 2013 concluding

that plaintiff had demonstrated an adequate showing of malice by

defendant     to    eliminate         defendant’s       statutory     privilege    and

compelling     defendant         to    disclose     the    previously       privileged

information     (“the       Bushfan     Order”).          Defendant     appeals    the

Bushfan Order.

      As an initial matter, we note that this appeal concerns an

order   to    compel    discovery       and     this    appeal   is   interlocutory.

“Generally,        there    is    no    right      of     immediate    appeal     from

interlocutory orders and judgments.”                      Goldston v. Am. Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).                         However,

"orders compelling discovery of materials purportedly protected
                                            -6-
by the medical review privilege or work product doctrine are

immediately      reviewable         on   appeal     despite       their   interlocutory

nature."      Hammond v. Saini, ___ N.C. App. ___, ___, 748 S.E.2d

585,    588   (2013).          “[I]mmediate       appeal     is    available     from    an

interlocutory         order    or    judgment     which     affects       a   substantial

right.”       Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,

579 (1999) (quotation marks omitted).                     "Accordingly, when . . .

a party asserts a statutory privilege which directly relates to

the    matter    to    be     disclosed     under    an    interlocutory        discovery

order, and the assertion of such privilege is not otherwise

frivolous       or    insubstantial,        the     challenged      order      affects   a

substantial right[.]"            Id. at 166, 522 S.E.2d at 581.

       In the instant case, defendant claims that the materials

subject to the order on appeal are privileged pursuant to N.C.

Gen. Stat. § 131E-95.               Because the trial court’s order compels

discovery of materials that defendant claims are subject to the

statutory       medical     review       privilege,    the    trial       court’s   order

affects a substantial right and thus is immediately appealable.

Id.; Hammond, __ N.C. App. at ___, 748 S.E.2d at 588.

       We next address whether there was a showing of changed

circumstances sufficient to support the trial court’s decision

in the Bushfan Order on the issue of privilege.
                                       -7-
      In North Carolina, “no appeal lies from one Superior Court

judge to another; that one Superior Court judge may not correct

another’s errors of law; and that ordinarily one judge may not

modify, overrule, or change the judgment of another Superior

Court judge previously made in the same action.”                   Calloway v.

Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972).

A narrow exception to this rule exists where there has been a

substantial change in circumstances.               First Fin. Ins. Co. v.

Commercial Coverage, Inc., 154 N.C. App. 504, 507, 572 S.E.2d

259, 262 (2002).       “A substantial change in circumstances exists

if   since    the   entry   of   the   prior    order,   there   has   been   an

intervention of new facts which bear upon the propriety of the

previous order.”       Id. (citations and quotation marks omitted).

However, “in the absence of adequate findings specifying the

nature   of   the   change   of   circumstances     upon   which    the   court

relies, it is without authority to overrule, either expressly or

implicitly, the first judge’s prior determination as reflected

in its order.”        Crook v. KRC Mgmt. Corp., 206 N.C. App. 179,

190, 697 S.E.2d 449, 456-57 (2010) (citation and quotation marks

omitted) (emphasis in original).             “[W]here the trial court fails

to find that there has been a material change in circumstances,

it has no authority to modify the order of another judge.”                 Id.,
                                                -8-
697 S.E.2d at 457.

       In     the    instant       case,    the       Bushfan         Order    made       several

findings       regarding         the     patient           affidavits       that        plaintiff

presented both to Judge Hardin and to Judge Bushfan.                                     It also

listed findings regarding the statutory privilege and the malice

exception as set forth in N.C. Gen. Stat. § 131E-95.                                    However,

while the Bushfan Order found that the Hobgood Order “stated in

pertinent part that ‘matters occurring prior to August 25, 2008

may    come    in    as     evidence      for    other          reasons,’”    it     failed     to

reference      either       of    the    prior    orders         on   the    subject      of   the

statutory privilege.               In addition, the Bushfan Order failed to

make     any        findings       regarding           a        substantial        change      in

circumstances         that       would    allow       the       trial   court      to    reverse

defendant’s claim of privilege as upheld in the Hardin Order.

The Bushfan Order did not set forth adequate findings specifying

the nature of the change in circumstances upon which the court

relied.       Therefore, the court was without authority to overrule

the prior determination of defendant’s statutory privilege.                                    Id.

at 190, 697 S.E.2d at 456-57.                         Because we reverse the trial

court’s order based on the lack of findings regarding changed

circumstances,         it     is    unnecessary            to     consider     the       parties’

remaining arguments regarding the statutory privilege.
                         -9-
Reversed.

Judges McGEE and STROUD concur.

Report per Rule 30(e).
