An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1475
                       NORTH CAROLINA COURT OF APPEALS

                               Filed:    15 July 2014

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

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


       Appeal by plaintiff from order entered 1 July 2013 by Judge

James E. Hardin, Jr. in Vance County Superior Court.                     Heard in

the Court of Appeals 7 May 2014.


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

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


       CALABRIA, Judge.


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

from   an   order    denying     his    motion   for    protective     order    and

granting     Maria    Parham     Medical     Center,     Inc.’s    (“defendant”)

motion to compel.       We affirm.

                                 I. Background
                                           -2-
      Plaintiff is an orthopedic surgeon who held active staff

privileges with 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 deliver a request for 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, and requested 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    January      2007,   alleging        three     specific    instances
                                              -3-
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 by “W.

Blower”     that        had     been       submitted        to      the     NCMB       alleging

inappropriate or disruptive behavior on plaintiff’s part.                                    The

“W. Blower” allegations included references to incidents that

were the subject of the 2005 and 2006 peer reviews and fair

hearing.

      On   25    August       2011,     plaintiff         filed    a     complaint       against

defendant       alleging,       inter       alia,     unfair       and     deceptive       trade

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

interference with contractual                  relations, invasion of privacy,

intentional       infliction          of    emotional           distress      (“IIED”),      and

negligent       infliction        of       emotional       distress        (“NIED”).          In

connection       with    his     claims       for     breach        of     contract,      civil

conspiracy,      tortious        interference         with       contractual          relations,

and   invasion     of    privacy,          plaintiff       alleged       that    he     suffered

emotional       distress       “as     a    direct        and     proximate       result”    of

defendant’s       actions,        and       sought        compensatory          and    punitive

damages.        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.
                                              -4-
       In     response      to     one        of        defendant’s        interrogatories,

plaintiff       indicated       that     he    had       been    treated       by   the    North

Carolina Physician Help Program (“NC PHP”), and that “specifics

may be obtained from NC PHP program.”                           Plaintiff did not assert

any privilege but objected on the grounds that the interrogatory

was    overly       broad   and    not    reasonably            calculated       to      lead    to

discovery of admissible evidence.                        On 30 April 2012, plaintiff

voluntarily dismissed, without prejudice, his claims for IIED

and NIED.

       On 2 May 2012, plaintiff testified at a deposition that as

part    of    his    involvement        with       NC    PHP,     he    participated        in    a

program at the Physicians Renewal Center in Lawrence, Kansas

(“PRC”),       and    had    regular          visits       with        psychologist       George

Wagaman, Ph.D. (“Dr. Wagaman”) in Chapel Hill, North Carolina.

After    defendant       sent     plaintiff         a     formal       request      to   execute

releases for plaintiff’s records from NC PHP, plaintiff claimed

that    his     records     were       privileged         because        the   records      were

requested for use by a medical review board pursuant to N.C.

Gen. Stat. § 131E-95.              Defendant subsequently filed a motion to

compel.       Plaintiff filed a motion for a protective order.

       After a hearing on both motions, the trial court entered an

order for in camera review of plaintiff’s records from NC PHP,
                                              -5-
Dr. Wagaman, and the PRC.                 After the in camera review, the trial

court     entered       an     order        finding       that    “plaintiff’s        counsel

reaffirmed       that    plaintiff           is     seeking,       as    alleged      in   his

complaint, emotional distress damages in conjunction with the

claims    that       remain        pending    in    the     lawsuit.        As    a   result,

Plaintiff has placed his mental health and history at issue in

this    lawsuit.”            The    trial     court       concluded      that    plaintiff’s

medical       records    were        “plainly       relevant       to     his    claims    for

emotional       distress       damages,           and     Plaintiff      has     waived    any

privilege that might otherwise shield his medical records from

being discovered.”                 The trial court then granted defendant’s

motion to compel.            Plaintiff appeals.

       Plaintiff       argues        that    the        trial    court    (1)    abused    its

discretion in concluding that plaintiff waived his privilege,

and (2) erred in concluding that the privilege afforded the NC

PHP    does    not    extend        to   other     providers.           Defendant     filed   a

motion to dismiss plaintiff’s appeal.

                 II. Interlocutory Appeal / Motion to Dismiss

       As an initial matter, defendant contends that plaintiff’s

appeal should be dismissed because there is substantial evidence

to support the trial court’s finding that plaintiff impliedly

waived his privilege.                    We note that this appeal concerns an
                                               -6-
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

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.                        Because

plaintiff’s      appeal       concerns         a    claim       of    privilege,        the    trial

court’s order finding that plaintiff had waived his privilege

affects a substantial right.                        Therefore, we deny defendant’s

motion to dismiss and address plaintiff’s appeal.

                                         III. Waiver
                                           -7-
       We   first    address        whether      the     trial   court      abused     its

discretion in concluding that plaintiff waived his privilege.

Plaintiff specifically contends that because he dismissed his

claims for IIED and NIED, his NC PHP records are irrelevant to

the action.      We disagree.

       When reviewing a trial court’s ruling on a discovery issue,

this    Court    reviews      the     trial      court’s      order   for      abuse    of

discretion.         Midkiff   v.     Compton,      204    N.C.   App.    21,     24,   693

S.E.2d 172, 175 (2010).             “Abuse of discretion results where the

court’s ruling is manifestly unsupported by reason or is so

arbitrary that it could not have been the result of a reasoned

decision.”      Id. (citation omitted).

       “The facts and circumstances of a particular case determine

whether a patient’s conduct constitutes an implied waiver, and a

patient impliedly waives his privilege when he does not object

to     requested     disclosures          of    the    privileged        information.”

Mosteller v. Stiltner, ___ N.C. App. ___, ___, 727 S.E.2d 601,

603 (2012) (citation omitted).                 Our Courts have “also recognized

an   implied    waiver     where      a    patient       by   bringing      an   action,

counterclaim, or defense directly placed her medical condition

at issue.”         Mims v. Wright, 157 N.C. App. 339, 342-43, 578

S.E.2d 606, 609 (2003) (citations omitted).
                                          -8-
      In Young v. Kimberly-Clark Corp., ___ N.C. App. ___, 724

S.E.2d 552 (2012), the plaintiff filed a complaint alleging,

inter alia, “compensatory damages for emotional distress and/or

pain and suffering.”            ___ N.C. App. at ___, 724 S.E.2d at 554.

The defendant filed a motion to compel discovery on several

issues, including the plaintiff’s physical and mental health.

Id.   The trial court specifically found that the plaintiff had

placed     her    mental    and    emotional       health     at    issue       both    by

asserting a claim for infliction of emotional distress and by

seeking emotional distress damages in other causes of action.

Id. at ___, 724 S.E.2d at 555.               The trial court then allowed the

defendant’s motion to compel discovery regarding the plaintiff’s

physical and mental health for the five years prior to service

of the requests.          Id.   This Court held that the trial court did

not   abuse      its      discretion      in    allowing      discovery         of     the

plaintiff’s records of her physical and mental health.                           Id. at

___, 724 S.E.2d at 556.

      Plaintiff cites Iadanza v. Harper, 169 N.C. App. 776, 611

S.E.2d    217    (2005)    to   support      his   assertion       that   his    NC    PHP

records    are    irrelevant      to   his     claims   for    emotional        distress

damages.        In Iadanza, the plaintiff filed a complaint seeking

compensatory and punitive damages for professional negligence,
                                    -9-
breach of fiduciary duty, IIED, and NIED.             169 N.C. App. at 777,

611 S.E.2d at 220.       The defendant moved for partial summary

judgment on the issue of actual damages, and the trial court

granted the defendant’s motion.          Id. at 778, 611 S.E.2d at 220.

On appeal, the defendant argued that the plaintiff needed proof

of severe emotional distress to prevail in her claim for pain

and suffering damages.       Id. at 780, 611 at 221.                 This Court

rejected the defendant’s argument, holding that a plaintiff need

not prove the severe emotional distress as required by claims

for IIED or NIED in order to prove pain and suffering damages.

Id. (citation omitted).      However, this Court also noted that a

plaintiff must prove his cause of action before being entitled

to all damages, including pain and suffering, that derive from

the cause of action.   Id.

    Plaintiff   concedes     that   he    has   the    burden   of    proof   of

establishing emotional distress in pain and suffering damages.

Plaintiff is also correct that damages for pain and suffering

are recoverable without proof of severe emotional distress as

required for claims of IIED and NIED. Iadanza, 169 N.C. App. at

780, 611 S.E.2d at 221-22.          Plaintiff contends that his three

week participation in the program at PRC and his regular visits

with Dr. Wagaman did not constitute treatment, that he has never
                                            -10-
been diagnosed with a mental or emotional disorder, and that

there are no supporting documents.                    However, plaintiff appears

to    misunderstand      the     nature     of     defendant’s         request,         and    his

assertions,      that     his    medical      records       are    irrelevant            to    the

action because he has not been diagnosed with a severe emotional

condition,      are     misplaced.          Defendant       does       not     contend        that

plaintiff       must    prove     severe      emotional       distress.                 Instead,

defendant’s          discovery        requests       merely        sought           proof       of

plaintiff’s alleged damages as related to the alleged emotional

distress.

       In the instant case, plaintiff specifically claimed damages

related    to    emotional       distress,       alleging      as       part       of    several

causes of action that “[a]s a direct and proximate result of

Defendants’       actions       and    omissions,       Plaintiff            suffered,         and

continues       to     suffer,     significant        harm        to     his       reputation,

emotional       distress,       economic     loss     and     other       damages.”             In

addition, plaintiff specifically alleged in his claim for civil

conspiracy       that     defendant’s        “actions        and       conduct          in    this

conspiracy      were     designed      to   bring     great       harm       and    damage      to

Plaintiff by causing damage: to his reputation; severe economic

and    financial       loss;     severe     emotional       distress,          and      loss    of

Plaintiff’s       medical       license.”          Defendant           sought      copies       of
                                          -11-
plaintiff’s records from NC PHP, PRC, and from Dr. Wagaman, a

professional psychologist.             Plaintiff did not dispute that he

had participated in the PRC program or that he had visited Dr.

Wagaman on several occasions.               Plaintiff did not assert any type

of   privilege      in    his    answers      to   discovery       until    defendant

requested releases for these records.

     At     the     hearing,     the   trial       court    reviewed       plaintiff’s

complaint and voluntary dismissal of his claims for IIED and

NIED, plaintiff’s answers to the pertinent interrogatories, and

excerpts     from    plaintiff’s       deposition      in    which     he     answered

questions regarding the names of his providers and the lengths

of his participation in the programs.                  After hearing counsel’s

arguments     regarding         reasons     plaintiff’s       records       were   not

discoverable, the trial court also ordered an in camera review

of the records.          Subsequent to the in camera review, the trial

court entered an order finding that plaintiff was indeed seeking

emotional    distress      damages     in    conjunction     with    his     remaining

claims, and that as a result plaintiff had placed his mental

health and history at issue.                The trial court also found that

plaintiff had failed to assert any privilege in his responses to

defendant’s       interrogatories.          The    trial   court    then     concluded

that because plaintiff had placed his mental health and history
                                           -12-
at issue by virtue of his claims for emotional distress damages,

his medical records were “plainly relevant to his claims for

emotional      distress       damages,       and    Plaintiff        has     waived    any

privilege that might otherwise shield his medical records from

being discovered,” pursuant to both Young and Mims.                            The trial

court also noted plaintiff’s failure to assert any privilege,

concluding that any claim of privilege had been waived on that

ground, as well.             The record indicates that the trial court

considered      evidence       and    arguments       from     both        parties,    and

conducted an in camera review of the documents before entering

its   order.         Therefore,      the    trial    court     did    not     abuse     its

discretion      in     concluding          that    plaintiff       had      waived      his

privilege.

      Plaintiff       also    argues       that     the    trial     court     erred     in

concluding that the statutory privilege afforded to the NC PHP

does not extend to other providers.                  However, because the trial

court did not abuse its discretion in concluding that plaintiff

had waived any claim of privilege, we need not address this

argument.

                                  IV. Conclusion

      Plaintiff       asserts     that     the     trial   court’s       findings      were

unsupported by the evidence, and that the court’s conclusions
                                      -13-
were    not    supported   by   the   findings.    However,      the   record

indicates otherwise.       We find no evidence that the trial court’s

order    was    “manifestly     unsupported   by   reason   or    [was]    so

arbitrary that it could not have been the result of a reasoned

decision.”      Midkiff, 204 N.C. App. at 24, 693 S.E.2d at 175.

Therefore, we affirm the order of the trial court.

       Affirmed.

       Judges BRYANT and GEER concur.

       Report per Rule 30(e).
