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Nicholson v. Thom

Court of Appeals of North Carolina

September 16, 2014

STEPHEN C. NICHOLSON, Individually and as Administrator of the Estate of Geraldine Anne Nicholson, Plaintiff,

Heard in the Court of Appeals February 19, 2014.

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[Copyrighted Material Omitted]

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Robeson County. No. 08 CVS 1845.

Comerford & Britt, L.L.P., by John A. Chilson and Clifford Britt, and Musselwhite, Musselwhite, Branch & Grantham, by James W. Musselwhite, for Plaintiff.

Yates McLamb and Weyher, L.L.P., by Dan McLamb and Andrew C. Buckner, for Defendant.[1]

STEPHENS, Judge. Judges BRYANT and DILLON concur.


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Appeal by Defendant from Judgment entered 16 October 2012 and Order entered 19 December 2012 by Judge Mary Ann Tally in Robeson County Superior Court.


This case arises from claims of negligence and loss of consortium brought on 21 May 2008 by Plaintiff Stephen C. Nicholson, administrator of the estate of his wife Geraldine Anne Nicholson (" the decedent" ). Prior to 28 June 2005, at the age of fifty-four, the decedent began experiencing heavy rectal bleeding. It was later discovered that she had a cancerous tumor in her rectum. Plaintiff's claims stem from a surgical procedure performed by Defendant Arleen Kaye Thom, M.D., to remove the tumor. The surgery was performed at Cape Fear Valley Medical Center (" Cape Fear" ) on 28 June 2005. At the time of the surgery, Defendant was a general surgeon with special training and experience in performing cancer surgery. In order to remove the tumor, Defendant made a large abdominal incision to expose the decedent's bowels, a separate incision to completely remove the rectum and anus, and inserted a colostomy bag to allow stool to pass through the abdominal wall.

The decedent's post-surgical treatment included chemotherapy and radiation therapy.

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Over the next few weeks, as the treatment was beginning, the decedent started to get unusually sick. She had problems with nausea and diarrhea that led to abnormalities with her body chemistry. She got weaker and was readmitted to Cape Fear for weakness, inability to eat, diarrhea, and problems with electrolytes. On 31 August 2005, two months and twenty-six days after the surgery, an X ray revealed a retained surgical sponge in the right lower quadrant of the decedent's abdomen.

One week later, on 7 September 2005, an additional operation was performed to remove the sponge. The middle part of the decedent's abdomen was reopened, and the sponge was removed. According to expert testimony offered on Plaintiff's behalf, the surgery revealed that " there was a perforation of the bowel [and] the [retained sponge] was contaminated with intestinal contents. There was an abscess[2] around [the sponge and] dense adhesions[3] all the way around." As a result, the surgeon removed a section of the decedent's bowel, spent forty-five minutes dividing the scar tissue that was nearby, and ultimately removed the sponge. The surgeon did not close the skin around the abdominal wall because of " the amount of infection that was present." [4]

After the September surgery, the decedent received additional care for the open wound. She also underwent multiple additional surgeries between September 2005 and February 2006. The first of these additional surgeries was an attempt to close the abdominal wound resulting from the previous surgery. This surgery failed, and another surgery was required to complete that procedure. The decedent also needed a third operation, according to Plaintiff's expert, " because she developed progressive blockage of her intestines from the scar tissue that was related to the sca[r]ring from the sponge." A fourth operation was later required to repair leakage resulting from the third surgery. Lastly, the decedent required surgery to address an infection of the skin. Plaintiff's expert testified that all of these surgeries were necessary as a result of the retained sponge.

The expert also testified that the decedent was not able to complete her chemotherapy and radiation therapy as a result. The decedent's cancer returned in July of 2006 and metastasized to her brain. From the date of her admission to Cape Fear on 31 August 2005 to the date of her death in 2006, the decedent changed hospitals, " but she never left a hospital bed." She died in 2006 as a result of the cancer.

In his complaint, Plaintiff alleged that Defendant negligently failed to remove the surgical sponge from the decedent's abdomen and, in failing to do so, caused much of " the damage[] sustained by the dece[dent] prior to her death[.]" Specifically, Plaintiff contended that Defendant's actions directly and proximately damaged the decedent in the form of medical bills, pain and suffering, scarring and disfigurement, " multiple additional medical impairments," " multiple additional surgical procedures," 401 days of life spent in the hospital, and an inability to complete recommended cancer treatments leading to a " shortened life expectancy." Plaintiff also brought a cause of action for loss of consortium, asserting that Defendant's alleged negligence caused " a loss and disruption of the marital relationship" he had enjoyed with the decedent, including " the loss and disruption of her marital services, society, affection, companionship and/or sexual relations." Plaintiff did not bring a cause of action for wrongful death. Defendant denied the material allegations of Plaintiff's complaint by answer filed 30 July 2008.

During discovery Plaintiff learned that Defendant had been " disabled" since the middle of August 2005. As a result, Plaintiff served a second request for production of documents on 8 January 2010, seeking a copy of Defendant's application for disability benefits, correspondence regarding that claim, and a copy of all of Defendant's medical records " that

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relate or pertain to [a disability] in her left arm that she sustained on or about" 17 August 2005. Plaintiff served a third[5] set of interrogatories on Defendant that same day, seeking the " full details" of the 17 August 2005 injury to Defendant's arm. Defendant objected to these discovery requests on 10 February 2010. One week later Plaintiff filed a motion to compel Defendant to respond to the challenged discovery requests. In an affidavit filed with the trial court, one of Defendant's attorneys averred that he believed the requested documents were protected under the physician-patient privilege. The trial court, Judge Ola M. Lewis presiding, granted Plaintiff's motion to compel by order entered 7 April 2010, with the limitation that the requested documents would be disclosed only to Plaintiff's counsel. Defendant appealed that order to this Court.

Following Defendant's appeal, the trial court entered an order staying discovery until the matter could be reviewed on appeal. Defendant also filed a motion to stay proceedings of the trial court, and that motion was granted on 15 April 2010. Despite the interlocutory nature of Defendant's appeal, we reviewed the trial court's order granting Plaintiff's motion to compel as affecting a substantial right and affirmed the decision of the trial court. Nicholson v. Thom, 214 N.C.App. 561, 714 S.E.2d 868 (2011) (unpublished opinion), available at [published in full-text format at 2011 WL 3570122, at *2, *8 [hereinafter Nicholson I ], disc. review denied, 365 N.C. 557, 724 S.E.2d 509 (2012). In so holding, we noted that the requested documents were protected by the physician-patient privilege, but pointed out that the trial court is authorized to order the production of documents protected by the physician-patient privilege, in its discretion, when, in the opinion of the judge, they are necessary to serve the proper administration of justice. [WL] at *4--*5. Because of " the potential relevance of the information contained in the disputed records," we concluded that the trial court did not abuse its discretion by granting Plaintiff's motion to compel. [WL] at *8. As a consequence, Defendant produced copies of the requested records on 29 March 2012.[6]

On 14 May 2012, after reviewing the documents, Plaintiff served a third request for production of documents on Defendant. Specifically, Plaintiff sought access to " all of" Defendant's medical and pharmaceutical records pertaining to: (1) " her cervical spine, cervical disc disease, cervical radiculopathy, cervical stenosis, disc bulge, and laminectomy surgery," including magnetic resonance imaging scans; (2) " her diagnosis, treatment, and monitoring of sacroiliitis" ; (3) " her diagnosis and treatment of depression and/or post-traumatic stress disorder" ; (4) " her diagnosis and treatment of Parsonage-Turner Syndrome" ; and (5) " the brachial plexus neuropathy in her left arm that she sustained on . . . [17 August 2005]." Plaintiff also requested a copy of Defendant's records " from Advanced PT Solutions, UNC Chapel Hill (neurosurgery), Dr. Viren Desai, Dr. Pendleton, Dr. Robertson, Dr. Johnson, Dr. Stratus, Dr. Gluck, Dr. Bettendorf, Home Instead, Kohll's/RxMPSS Pharmacy, CapeFearDiscountDrug, and Walmart Pharmacy." Defendant objected on grounds that the documents were privileged, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence, and Plaintiff again moved to compel production.

On 7 August 2012, the trial court, Judge James Gregory Bell presiding, allowed Plaintiff's motion to compel. The court concluded that the requested discovery was " relevant and reasonably calculated to lead to the discovery of admissible evidence," " reasonably tailored to address questions raised by the recent production of Defendant's medical and disability records, . . . not overly burdensome, and its probative value outweigh[ed] any potential prejudice to . . . Defendant."

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The court also concluded that the requested medical records were protected under the physician-patient privilege, but that they " should be produced because the interests of justice outweigh the protected privilege." Defendant appealed that order to this Court on 13 August 2012.[7]

Four days later, on 17 August 2012, Plaintiff served a subpoena and subpoenas duces tecum on counsel for Defendant, seeking to have Defendant appear on 21 August 2012, testify, and produce the following documents: (1) " all records requested by Plaintiff in his 3rd [r]equest for [p]roduction of documents which were ordered to be produced by . . . Judge Bell on August 7, 2012" and (2) " [t]he original or certified copy of Cape Fear['s] entire chart for [Defendant]." Defendant filed objections and motions to quash on 21 August 2012.[8]

Between August 29 and 31 of 2012, Plaintiff issued fifty-four subpoenas duces tecum to various persons, pharmacies, and corporations, requiring them to produce either Defendant's " entire chart" or her medical and pharmaceutical records from between January and September of 2005. Counsel for Defendant was served with copies of those subpoenas on 12 September 2012. On 18 September 2012, Defendant filed an objection and motion to quash these subpoenas or, in the alternative, for entry of a protective order.

The matter came on for trial beginning 1 October 2012 in Robeson County Superior Court, Judge Mary Ann Tally presiding. Following an in camera review of the subpoenaed documents, the trial court denied Defendant's motion and allowed certain of the documents to be produced to Plaintiff. The documents were not admitted into evidence, but were referenced extensively by counsel for Plaintiff in his questioning of Defendant.[9] Plaintiff's counsel also questioned Defendant about descriptions of Defendant's medical condition from sealed affidavits submitted to the trial court in March of 2010. The affidavits, which concerned the state of Defendant's health at that time, had been submitted by two of Defendant's health care providers in support of her request to refrain from attending the trial, which at that time was scheduled to occur in 2010.

Other evidence admitted at trial described the course of the decedent's cancer treatment. In addition, Plaintiff introduced a summary of the decedent's medical bills, totaling $1,219,660.36, approximately $860,000 of which was considered a " write-off[]" by the Cumberland County Hospital System and had not been paid by any source.

At the conclusion of the trial, the jury returned verdicts awarding $5,050,000 to the estate and $750,000 to Plaintiff, individually, for a total award of $5,800,000. The trial court reduced that amount by $1,150,000 pursuant to Plaintiff's settlement with " other defendants in another case" and entered judgment against Defendant on 16 October 2012 for a total amount of $4,650,000.[10] On 19 October and 21 November 2012, respectively, Defendant filed motions for " Amendment of Judgment (Remittitur) or New Trial" pursuant to Rule 59(a) and " Relief from Judgment" pursuant to Rule 60(b). The trial court denied those motions by order filed on 19 December 2012. Defendant appealed that order and the trial court's judgment entered

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upon the jury's verdict to this Court on 15 January 2013.


On appeal, Defendant argues that the trial court erred by: (1) denying her motion to quash the subpoenas duces tecum or, alternatively, for entry of a protective order; (2) providing her medical records to counsel for Plaintiff; (3) allowing counsel for Plaintiff to question her concerning her health and her medical records for the purpose of suggesting that she was impaired during the surgery she performed on the decedent; (4) allowing counsel for Plaintiff to question her and other witnesses about the propriety of advising the decedent of the medications Defendant was taking at the time of the operation; (5) allowing counsel for Plaintiff to introduce evidence of medical bills " which were not actually incurred or paid by [Plaintiff] . . . or any other entity" ; (6) instructing the jury on permanent injury; and (7) denying Defendant's motion for amendment of judgment (remittitur) or new trial. As discussed below, we find no error in part, but remand for a new trial on damages.

I. Defendant's Medical and Pharmacy Records

A. Mootness

As a preliminary matter, we address Plaintiff's argument that Defendant's appeal from the trial court's order denying her motion to quash and allowing the production of her medical and pharmaceutical records is moot because the subpoenaed documents were never entered into evidence. We disagree.

In North Carolina, an issue is moot

[w]henever[] during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue[. In those circumstances,] the case should be dismissed [as moot], for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.

In re Hamilton, __ N.C.App. __, __, 725 S.E.2d 393, 396 (2012) (citation omitted).

In this case Defendant requests that this Court determine the validity of the trial court's rulings because she contests the result stemming from the production of her records to Plaintiff -- the extensive use of those documents by Plaintiff during questioning of Defendant. This issue remains in controversy between the parties and, therefore, would not require this Court to merely determine an abstract proposition of law. Therefore, the issue of the validity of the trial court's ruling on the production and use of Defendant's medical and pharmaceutical records is not moot. Accordingly, Plaintiff's argument is overruled, and we proceed with a review of Defendant's arguments on the merits.

B. Standard of Review

" When the propriety of a subpoena duces tecum is challenged, it is . . . addressed to the sound discretion of the court in which the action is pending." Vaughan v. Broadfoot, 267 N.C. 691, 697, 149 S.E.2d 37, 42 (1966). " It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). " A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason . . . [or] upon a showing that [the trial court's ruling] was so arbitrary that it could not have been the result of a reasoned decision." Id.

With regard to the production and use of contested medical records, a trial court's determination regarding the applicability of the physician-patient privilege is a legal question, which is reviewed de novo on appeal. See Nicholson I, 2011 WL 3570122 at *3. However,

[t]he decision as to whether disclosure of information protected by the physician-patient privilege is required to serve the proper administration of justice is one made in the discretion of the trial judge, and the appellant must show an abuse of discretion in order to successfully challenge the ruling.

[WL] at *8. Here, the parties do not dispute the fact that Defendant's medical records are

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protected by the physician-patient privilege. Rather, Defendant contests the validity of the trial court's decisions to produce those documents to Plaintiff and allow Plaintiff to use the documents during questioning of Defendant. Accordingly, the standard of review for each of these issues is abuse of discretion.[11]

C. Subpoenas Duces Tecum

Defendant contends that the trial court abused its discretion in overruling her objection and denying her motion to quash Plaintiff's subpoenas duces tecum or, in the alternative, for entry of a protective order because the subpoenas were improperly used for purposes of discovery and their issuance violated the Health Insurance Portability and Accountability Act (" HIPAA" ). In response, Plaintiff contends the subpoenas were not issued for the purpose of discovery and Defendant was properly given notice of their issuance and an opportunity to object. We find no error.

i. The Purpose of the Subpoenas Duces Tecum

The subpoena duces tecum. . . is the process by which a court requires the production at the trial of documents, papers, or chattels material to the issue. . . .
. . . .
Anything in the nature of a mere fishing expedition is not to be encouraged. A party is not entitled to have brought in a mass of books and papers in order that he may search them through to gather evidence.[12]
The law recognizes the right of a witness subpoenaed duces tecum to refuse to produce documents which are not material to the issue or which are of a privileged character. Nevertheless, whether a witness has a reasonable excuse for failing to respond to a subpoena duces tecum is to be judged by the court and not by the witness. Though he may have [a] valid excuse for not showing . . . the document in evidence, yet he is bound to produce it, which is a matter for the judgment of the court and not the witness.
. . . . [On a motion to quash] a subpoena duces tecum. .., the court . . . examine[s] the issues raised by the pleadings and, in the light of that examination, . . . determine[s] the apparent relevancy of the documents or the right of the witness to withhold production upon other grounds. An adverse ruling upon [the] movant's motion to quash . . . gives counsel [for the respondent] no right to inspect the books, documents, or chattels ordered to be produced at the trial, nor does it determine the admissibility of [those] items at the trial. The subpoena merely requires the witness to bring them in so that the court, after inspection, may determine their materiality and competency, or so that the witness, by reference to the books or papers, can answer any questions pertinent to the inquiry.

Vaughan, 267 N.C. at 695-97, 149 S.E.2d at 40-42 (citations, internal quotation marks, parentheses, and an ellipsis omitted).

Defendant contends that Plaintiff's subpoenas duces tecum were improper because they " were not issued to secure evidence for presentation for trial, as proven by the fact that none of the documents were offered into evidence." Rather, Defendant contends, " they were ...

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