                                NO. COA14-7

                    NORTH CAROLINA COURT OF APPEALS

                       Filed:    2 September 2014


JEROME BREWER, SABRINA BREWER,
and MATTHEW J. BREWER, by and
through his Guardian Ad Litem,
Timothy T. Leach,

    Plaintiffs

    v.                                 Gaston County
                                       No. 11-CVS-1437
WILLIAM D. HUNTER, M.D.,
NEUROSCIENCE & SPINE CENTER OF
THE CAROLINAS, P.A., and
NEUROSCIENCE & SPINE CENTER OF
THE CAROLINAS, L.L.P.

    Defendants


    Appeal by defendants from order entered 15 August 2013 by

Judge F. Donald Bridges in Gaston County Superior Court.            Heard

in the Court of Appeals 8 May 2014.


    Law Office of Thomas D. Bumgardner, PLLC, by Thomas D.
    Bumgardner, and The Eisen Law Firm Co., L.P.A., by Brian N.
    Eisen, pro hac vice, for plaintiffs-appellees.

    Lincoln Derr, PLLC, by Sara R.              Lincoln   and   Scott    S.
    Addison, for defendants-appellants.


    DAVIS, Judge.


    William   D.   Hunter,   M.D.   (“Dr.     Hunter”),   Neuroscience    &

Spine Center of the Carolinas, P.A., and Neuroscience & Spine
                                                  -2-
Center    of     the      Carolinas,            L.L.P.      (collectively          “Defendants”)

appeal    from       an   order       granting         in   part     the     motion      of    Jerome

Brewer, Sabrina Brewer, Matthew Brewer, and Timothy T. Leach,

the     guardian          ad    litem        of        Matthew       Brewer,       (collectively

“Plaintiffs”) to compel discovery in this medical malpractice

action.        On appeal,            Defendants         contend that the trial court

erred    in    requiring         them        to    produce         various    medical         records

regarding certain former patients of Dr. Hunter who                                           are not

parties to this lawsuit.                   After careful review, we conclude that

the trial court’s order should be affirmed.

                                      Factual Background

      In 1998, Jerome Brewer (“Mr. Brewer”) underwent thoracic

spinal surgery for treatment of spinal stenosis, back pain, and

bilateral leg weakness.                    In 2007, Mr. Brewer was seen by his

primary       care    physician           for     treatment         of    back    pain    and      leg

weakness, symptoms similar to those that led to his surgery in

1998.

      On 28 January 2008, Mr. Brewer was referred to Dr. Hunter,

who     was    employed         by        Neuroscience         &     Spine       Center       of   the

Carolinas,       P.A.          and    Neuroscience             &    Spine     Center          of   the

Carolinas,       L.L.P.,             after        an     MRI       scan      revealed         diffuse

degenerative         disease         in    Mr.    Brewer’s         lumbar     area    and      severe

canal stenosis.                On 19 March 2008, Dr. Hunter diagnosed Mr.
                                         -3-
Brewer as suffering from severe spinal stenosis and recommended

a thoracic laminectomy.            Mr. Brewer consented to the surgery,

which was performed by Dr. Hunter on 10 April 2008.

         Upon awakening from surgery, Mr. Brewer discovered that he

was unable to move his lower extremities and had no sensation

below his thighs.         An MRI scan revealed that he had suffered a

severe spinal cord infarction during surgery.                     Subsequent MRI

scans revealed that Mr. Brewer continued to suffer from severe

myelomalacia.        To date, Mr. Brewer remains permanently confined

to   a    wheelchair,     continues    to      undergo   physical    therapy    and

rehabilitation,       and     requires      assistance     with     daily     tasks,

including managing his bowel and bladder functions.

         On 31 August 2012, Plaintiffs filed an amended complaint1 in

Gaston      County    Superior      Court      against   Defendants,        alleging

medical negligence, loss of consortium, and negligent infliction

of emotional distress.            Plaintiffs subsequently served a set of

written     discovery     requests    on    Defendants    which     sought,    inter

alia, “all documents . . . showing Dr. Hunter’s complications

and complication rate for thoracic laminectomies during 2005,

2006, 2007, and 2008 (up to and including April 10, 2008)” and

“all     documents    .   .   .   showing   Dr.    Hunter’s   case    volume     for

thoracic laminectomies during 2005, 2006, 2007, and 2008 (up to
1
  Plaintiffs’ original complaint is not contained in the record
on appeal.
                                            -4-
and   including     April         10,     2008).”        In        response,    Defendants

produced    a    copy   of    a     letter       from    Gaston       Memorial      Hospital

identifying 14 thoracic laminectomies performed by Dr. Hunter at

the hospital between May of 2005 and October of 2011 (including

the operation performed on Mr. Brewer) and stating that those

surgeries “were performed with no issues noted[.]”

      On 21 September 2012, Dr. Hunter was deposed.                             During his

deposition, Dr. Hunter testified that he had personally created

a list of 44 instances, including patient names and dates of

surgery,    in    which      he    had     performed          thoracic      laminectomies.

Plaintiffs       subsequently           requested       the        production       of    this

document, and a copy of the document – with the names of the

patients redacted – was provided to Plaintiffs’ counsel.

      On   25    October     2012,        Plaintiffs      filed       a    second    set   of

written discovery requests in which they sought, among other

things, “the operative notes and discharge summaries for all

surgeries    performed       by     Dr.    Hunter       and    as    identified      on    the

document    created     by    Dr.       Hunter    prior       to    his    deposition      and

attached as Exhibit A to this Request[.]”                           Plaintiffs attached

to this request the redacted document that had been produced by

Defendants following Dr. Hunter’s deposition.                             After Defendants

served objections to this request, Plaintiffs filed a motion to

compel on 18 July 2013.
                                    -5-
    A hearing on Plaintiffs’ motion took place on 29 July 2013.

On 15 August 2013, the trial court entered an order granting

Plaintiffs’   motion   in   part,    which   contained   the   following

findings of fact and conclusions of law:

         1.   Plaintiff   sought   production  of   44
         individual patient's operative notes and
         discharge   summaries   documenting  surgical
         procedures they had with the Defendant.

         2.   Plaintiff argued that the operative
         notes and discharge summaries of the 44
         individual patients were necessary to assess
         the credibility of the Defendant with regard
         to his testimony about the number of
         surgical procedures he had performed and the
         number of
         complications following those procedures he
         had encountered at the time he responded to
         questions at his deposition. Plaintiff also
         argued   that  the  operative   notes  would
         demonstrate the operative technique utilized
         by Defendant.

         3.   The Court has considered the interests
         of the parties and the issues at stake in
         this litigation and carefully weighed these
         interests against the concern to protect the
         private health information of non-party
         patients. A balance between these competing
         interests is best obtained by compelling
         production   of   some   of  the   requested
         documents, with appropriate redactions that
         would allow for the protection of the
         identity of the patients.

         4.   In the exercise of its discretion, this
         Court finds good cause exists for the
         Plaintiffs' Motion to Compel Discovery, and
         it is ALLOWED IN PART and DENIED IN PART.

         IT IS THEREFORE ORDERED, ADJDUGED [sic], and
         DECREED that:
                       -6-


1.   The   Defendants  shall   produce   the
operative notes and discharge summaries for
all procedures occurring from 2005 through
October 15, 2011 as identified on Exhibit A
to
Plaintiffs' Motion to Compel Discovery,
including the following dates of service:
5/10/05; 5/17/05; 5/23/05; 7/28/05; 9/8/05;
10/24/05; 3/9/06; 3/13/06; 7/15/06; 8/30/07;
9/17/07; 9/28/07; 1/18/08; 2/15/08; 7/10/08;
11/21/08;    11/24/08;   4/2/09;    10/5/10;
10/8/10; 3/4/11; 3/28/11; 5/13/11; 6/23/11;
and 10/15/11.

2.   Plaintiff's request for production of
operative notes and discharge summaries for
procedures occurring prior to 2005 is DENIED
and the procedures identified on Exhibit A
to Plaintiff's Motion to Compel Discovery
prior to May 10, 2005, shall not be produced
as they are privileged and not relevant to
this matter.

3.   Prior to production, the Defendants may
redact any protected health information from
the operative notes and discharge summaries.

4.   To    the     extent    that      there    is
information,      other     than      identifying
information,    contained    in    the    produced
records that is highly sensitive, or may
otherwise require redaction, Defense counsel
may submit the operative note and discharge
summary   to    this   Court    for    in   camera
inspection.    The   Court   will    review    and
consider any proposed redactions.

5.   The Defendants shall produce these
operative notes and discharge summaries
within a reasonable time not to exceed 45
days from entry of this order.

6.   Because the records being produced
pursuant to this Order are subject to the
protections   of    the   Health-Insurance
                                         -7-
               Portability and Accountability Act of 1996
               (“HIPAA"), 45 C.F.R. 164.500, et seq., N.C.
               Gen. Stat. § 131E-97, and N.C. Gen. Stat. §
               8-53,   the  production   of these   records
               affects a substantial right and there is no
               just reason to delay appeal.

      Defendants filed a timely notice of appeal to this Court.

                                    Analysis

      Defendants contend that the trial court erred by granting

in part Plaintiffs’ motion to compel.               We disagree.

I.    Jurisdiction

      As an initial matter, we must determine whether we have

jurisdiction over this appeal.              “An order compelling discovery

is    generally      not     immediately         appealable      because     it     is

interlocutory and does not affect a substantial right that would

be lost if the ruling were not reviewed before final judgment.”

Sharpe    v.    Worland,    351   N.C.    159,    163,    522    S.E.2d    577,    579

(1999).    However, where a party asserts a privilege or immunity

that directly relates to the matter to be disclosed pursuant to

the   interlocutory        discovery     order    and    the    assertion    of    the

privilege or immunity is not frivolous or insubstantial, the

challenged       order   affects    a    substantial       right    and     is    thus

immediately appealable.            K2 Asia Ventures v. Trota, 215 N.C.

App. 443, 446, 717 S.E.2d 1, 4, disc. review denied, 365 N.C.

369, 719 S.E.2d 37 (2011).
                                  -8-
    In the present case, Defendants argue that the documents at

issue are immune from discovery based on the privilege set out

in N.C. Gen. Stat. § 8-53, which governs the discoverability of

a patient’s medical records.       Our Supreme Court has held that

“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[.]”         Sharpe, 351 N.C. at 166, 522

S.E.2d at 581.     Accordingly, we possess jurisdiction over this

appeal.

II. Application of N.C. Gen. Stat. § 8-53

    N.C. Gen. Stat. § 8-53 states 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, and
            no such information shall be considered
            public    records    under     G.S.   132-1.
            Confidential information obtained in medical
            records shall be furnished only on the
            authorization   of   the   patient,  or   if
            deceased, the executor, administrator, or,
            in the case of unadministered estates, the
            next of kin. Any resident or presiding judge
            in the district, either at the trial or
            prior thereto, or the Industrial Commission
                                         -9-
             pursuant to law may, subject to G.S. 8-53.6,2
             compel   disclosure   if    in    his  opinion
             disclosure   is   necessary    to    a  proper
             administration of justice. If the case is in
             district court the judge shall be a district
             court judge, and if the case is in superior
             court the judge shall be a superior court
             judge.

N.C. Gen. Stat. § 8-53 (2013) (emphasis added).

      In the present case, Defendants contend that the production

of    non-party      medical      records      should   be     compelled       only        in

exceptional       circumstances.            However,    the        essence     of        their

argument is grounded more in policy than in law.                             It is well

established in North Carolina that policy decisions are solely

within the province of the General Assembly.                         See Richards v.

N.C. Tax Review Bd., 183 N.C. App. 485, 487, 645 S.E.2d 196, 197

(2007) (holding that the role of policy maker has been entrusted

by our Constitution to the General Assembly).

      While the General Assembly could have drafted N.C. Gen.

Stat.    §   8-53    so    as   to   impose     greater      restrictions           on    the

disclosure of non-party medical records than those applicable to

the     disclosure    of    the      medical     records      of     parties        to     the

litigation before the court, no such distinction has been drawn

in this statute.           Instead, N.C. Gen. Stat. § 8-53 leaves the

discoverability of all patient records subject to the discretion
2
  N.C. Gen. Stat. § 8-53.6 concerns the privilege applicable to a
marital counselor, psychologist, or social worker in alimony
actions and is, therefore, not relevant to the present case.
                                               -10-
of the trial courts of this State based upon whether the court

believes the disclosure of records is “necessary to a proper

administration of justice.”               N.C. Gen. Stat. § 8-53.

       This Court lacks the authority to judicially create – as

Defendants invite us to do – a new standard applicable to the

production of medical records where the General Assembly has

enacted a statute addressing the issue.                          See State v. Sims, 216

N.C. App. 168, 173, 720 S.E.2d 398, 401 (2011) (holding that

where the General Assembly “requires the Court to exercise its

jurisdiction in a certain manner, to follow a certain procedure,

or otherwise subjects the Court to certain limitations, an act

of     the    Court       beyond       these    limits       is    in      excess       of   its

jurisdiction”).

       Therefore, the only question before us is whether, on the

facts of the present case, the trial court abused its discretion

in determining that the disclosure of various records of certain

former       patients      of    Dr.    Hunter        was    “necessary      to     a    proper

administration of justice.”                    Our prior case law applying N.C.

Gen.    Stat.       §   8-53    makes     clear       that   a    trial    court’s       ruling

pursuant       to       this    statute    is     reviewed         under     an     abuse    of

discretion standard.               For example, in               Roadway Exp., Inc. v.

Hayes, 178 N.C. App. 165, 631 S.E.2d 41 (2006), the plaintiff

sought discovery concerning the issue of whether the defendant
                                         -11-
had been taking any prescription medications and had consumed

alcohol at the time of a motor vehicle accident.                     Id. at 168,

631 S.E.2d at 44.           The trial court ordered the defendant to

produce his medical records under seal for an in camera review,

limiting the scope of production to “only those medical records

that mention or reflect the results of any tests performed to

determine Defendant’s blood alcohol content and the presence of

controlled substances in his body.”                Id. at 170, 631 S.E.2d at

45-46.     Following the in camera review, the trial court ordered

that the records be produced to the plaintiff.                 Id. at 167, 631

S.E.2d at 44.

      On appeal, we held — based on N.C. Gen. Stat. § 8-53 — that

“[t]he physician-patient privilege is not an absolute privilege,

and   it   is   in    the   trial       court's   discretion    to    compel      the

production of evidence that may be protected by the privilege if

the evidence is needed for a proper administration of justice.”

Id. at 170, 631 S.E.2d at 45.             We further emphasized that “[t]he

decision that disclosure is necessary to a proper administration

of justice is one made in the discretion of the trial judge, and

the   defendant      must   show   an    abuse    of   discretion    in   order    to

successfully challenge the ruling.”                Id. at 171, 631 S.E.2d at

46 (citations and quotations omitted).
                                         -12-
     In State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992), the

State sought to compel the release of medical records concerning

the defendant’s blood alcohol content following a motor vehicle

accident.       Id. at 591, 411 S.E.2d at 607.                     Citing N.C. Gen.

Stat. § 8-53, our Supreme Court affirmed the trial court’s order

compelling the disclosure of the requested records, holding that

a court’s ruling pursuant to this statute may only be overturned

on appeal upon a showing of abuse of discretion.                     Id. at 591-92,

411 S.E.2d at 607.3

     “Under      the     abuse-of-discretion           standard,     we   review   to

determine     whether     a      decision   is        manifestly    unsupported     by

reason, or so arbitrary that it could not have been the result

of a reasoned decision.”               Mark Grp. Int'l, Inc. v. Still, 151

N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002).                      In the present

case,   after    a     hearing    in   which     it    carefully     considered    the

arguments of counsel and reviewed the documents submitted by the

parties, the trial court summarized the basis for its holding as

follows:

            My conclusion is that the request of records
            are [sic] relevant from the standpoint of
            credibility, experience, and technique used.
            That the records that I'm going to encompass
3
  Defendants cite to several cases from other jurisdictions in
which courts have refused to require the production of non-party
medical records in discovery.    However, unlike North Carolina,
none of those jurisdictions confer upon their trial courts the
discretion to determine the discoverability of such records.
                                      -13-
           by   this  order   are   necessary                for    the
           administration of justice.

      The court then entered an order reflecting the fact that it

had carefully balanced the respective interests implicated by

Plaintiffs’ motion:

           The Court has considered the interests of
           the parties and the issues at stake in this
           litigation   and   carefully  weighed   these
           interests against the concern to protect the
           private   health information of non-party
           patients. A balance between these competing
           interests is best obtained by compelling
           production   of   some   of  the    requested
           documents, with appropriate redactions that
           would allow for the protection of the
           identity of the patients.

      The careful consideration given to this issue by the trial

court   was   evidenced       by   its     decision    to     (1)   require    the

production of only 25 of the 44 patient records requested; (2)

provide for the redaction of information that could reveal the

identity of the patients whose records were being produced; and

(3) recognize the potential need of the parties to obtain an in

camera inspection of any portions of the records to be produced

containing other personal or sensitive information that could

potentially require redaction.

      Based on the facts of this case, we cannot say that the

trial court’s ruling was “manifestly unsupported by reason, or

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

reasoned decision.”          Mark Grp. Int'l, Inc., 151 N.C. App. at
                              -14-
566, 566 S.E.2d at 161.   Therefore, we hold that the trial court

did not abuse its discretion in granting in part Plaintiffs’

motion to compel.

                           Conclusion

    For the reasons set out above, the trial court’s 15 August

2013 order is affirmed.

    AFFIRMED.

    Judges HUNTER, JR. and ERVIN concur.
