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Hammond v. Saini

Supreme Court of North Carolina

December 19, 2014


Heard, October 6, 2014

N.C. Court of Appeals. No. 12-1493. Mark A. Davis, Judge. Cumberland County. No. 11CVS8281. Mary Ann Tally, Judge.

Patterson Harkavy LLP, by Burton Craige and Narendra K. Ghosh; and Bea-ver Holt Sternlicht & Courie, P.A., by Mark A. Sternlicht, for plaintiff-appellee.

McGuireWoods, LLP, by Patrick M. Meacham, Mark E. Anderson, and Mon-ica E. Webb, for defendant-appellants Wanda Untch, James Bax, and Cum-berland County Hospital System, Inc.

The Lawing Firm, P.A., by Sally A. Lawing; and The Whitley Law Firm, by Ann C. Ochsner, for North Carolina Advocates for Justice, amicus curiae.

Linwood Jones, General Counsel, for North Carolina Hospital Association, amicus curiae.


On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 748 S.E.2d 585 (2013), affirming in part and vacating and remanding in part orders entered on 18 June 2012 by Judge Mary Ann Tally in Superior Court, Cumberland County. Heard in the Supreme Court on 6 October 2014.

Page 591

[367 N.C. 608] JACKSON, Justice.

In this case we consider whether certain documents in the possession of the Cumberland County Health System, Inc. (" CCHS" ) are shielded from discovery by section 131E-95 of the North Carolina General Statutes, which protects " [t]he proceedings of a medical review committee, the records and materials it produces and the materials it considers." N.C.G.S. § 131E-95(b) (2013). Because we conclude that CCHS failed to demonstrate the existence of a medical review committee within the meaning of the statute, we hold that the documents are not shielded from discovery on this basis. Accordingly, we affirm the decision of the Court of Appeals.

On 28 September 2011, plaintiff filed a complaint against defendants in Superior Court, Cumberland County. Plaintiff's complaint alleged that on 17 September 2010, she went to Cape Fear Valley Medical Center for surgery to remove a pos-sible basal cell carcinoma from her face. The surgery was performed by Saira Saini, M.D., a physician with Carolina Plastic Surgery of Fayetteville, P.C., and total in-travenous anesthesia was administered by Victor Kubit, M.D., an anesthesiologist with Cumberland Anesthesia Associates, P.A. During the surgery, drapes were placed on plaintiff's face, and Dr. Kubit, along with nurse anesthetists Wanda Untch and James Bax, both CCHS employees, administered supplemental oxygen to plaintiff through a face mask. The complaint asserted that the supplemental oxygen was " permitted . . . to build up under the . . . drapes" on plaintiff's face. According to the complaint, the oxygen and the drapes were ignited by an electrocautery device used by Dr. Saini to stop bleeding, and the resulting fire caused first and second degree burns and left plaintiff with permanent injuries and scars. As a result, plaintiff sought damages based upon negligence.

On 2 December 2011, defendants CCHS, Untch, and Bax filed an answer denying the allegations of negligence.[1] Subsequently, plaintiff served interrogatories and requests for production of documents on [367 N.C. 609] these defendants. Defendants objected to some of plaintiff's discovery requests and argued, inter alia, that N.C.G.S. § 131E-95 shielded from discovery: (1) documents titled " Quality Care Control Reports" (" QCC Reports" ) prepared by Bax and Stephanie Emanuel; (2) notes taken by CCHS Risk Manager Harold Maynard; and (3) a document titled " Root Cause Analysis Report" (" RCA Report" ).

Plaintiff filed motions to compel discovery pursuant to Rule 37 of the North Carolina Rules of Civil Procedure. In opposing these motions, defendants submitted an affidavit from Maynard and a copy of an administrative policy titled " Sentinel Events and Root Cause Analysis" (" RCA Policy" ). In addition, defendants submitted copies of the documents that they had withheld to the trial court for in camera review. On 18 June 2012, the trial court entered orders granting plaintiff's motions to compel discovery. On an interlocutory appeal from these orders, the Court of Appeals affirmed the trial court's conclusion that N.C.G.S. § 131E-95 did not apply because defendants had not shown that the withheld documents were part of a medical review committee's proceedings, were produced by a medical review committee, or were considered by a medical review committee as required by the statute. Hammond v. Saini, __ N.C.App. __, __, 748 S.E.2d 585, 590 (2013). We allowed defendants' petition for discretionary review.[2]

Defendants argue that after the operating room fire that injured plaintiff, CCHS established a Root Cause Analysis Team (" RCA Team" ), which constitutes a medical review committee pursuant to N.C.G.S. ยง 131E-76(5). Defendants contend that as a result, the QCC Reports, Maynard's notes, and the RCA ...

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