NORTH CAROLINA COURT OF APPEALS
Filed: 21 March 2000
LASSIE M. SHARPE,
Plaintiff,
v.
DAVID ERIC WORLAND, GREENSBORO ANESTHESIA ASSOCIATES, P.A.,
WESLEY LONG COMMUNITY HOSPITAL, INC., JOHN DOES I through XXV,
AND JANE DOES I through XXV,
Defendants.
Any confidential patient information and other nonpublic information acquired, created, or used in good faith by [the North Carolina Medical Society and its local medical society components and the North Carolina Academy of Physician Assistants] pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case. No person participating in good faith in the peer review or impaired physician or impaired physician assistant programs of this section shall be required in a civil case to disclose any information acquired or opinions, recommendations, or evaluations acquired or developed solely in the course of participating in any agreements pursuant to this section.
I.
Defendant argues in part that the information sought is
privileged because it was "acquired, created, or used in good faith
by the PHP, a component of the North Carolina Medical Society,
pursuant to G.S. § 90-21.22(e). Plaintiff responds, relying onShelton v. Morehead Memorial Hospital, 318 N.C. 76, 347 S.E.2d 824
(1986), that the documents fall outside the protections of the
privilege set forth in subsection (e) because they are available
from a source other than the PHP. In Shelton, the North Carolina
Supreme Court held that the scope of the privilege provided by G.S.
§ 131E-95, which regulates discovery of information produced by
medical review committees, is limited to information that is not
"otherwise available," that is, available from a source other than
the medical review committee itself. Shelton, 318 N.C. at 83, 347
S.E.2d at 829. The Shelton court observed:
The statute [§ 131E-95] protects only a medical review committee's (1) proceedings; (2) records and materials it produces; and (3) materials it considers. But the statute also provides:
[I]nformation, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee. A member of the committee or a person who testifies before the committee may testify in a civil action but cannot be asked about his testimony before the committee or any opinions formed as a result of the committee hearings.[N.C. Gen. Stat. § 131E-95.]
These provisions mean that information, in whatever form available, from original sources other than the medical review committee is not immune from discovery or use at trial merely because it was presented during medical review committee proceedings; neither should one who is a member of a medical review committee be prevented from testifying regarding information he learned from sources other than the committee itself, even though that information might have been shared by the committee. [citation omitted.]
The statute is designed to encourage candor and objectivity in the internal workings of medical review committees. Permitting access to information not generated by the committee itself but merely presented to it does not impinge on this statutory purpose. These kinds of materials may be discovered and used in evidence even though they were considered by the medical review committee. This part of the statute creates an exception to materials which would otherwise be immune under the third category of items as set out above.
Shelton, 318 N.C. at 83-84, 347 S.E.2d at 829.
The statute at issue in Shelton is distinguishable from the
statute involved in the present case. In contrast to G.S. § 131E-
95, G.S. § 90-21.22 does not contain an otherwise available
proviso, providing instead an unqualified privilege to information
acquired, created, or used in good faith by the Academy or a
society pursuant to [G.S. § 90-21.22]. G.S. § 90-21.22 was
enacted at the urging of the North Carolina Medical Malpractice
Study Commission's Report and Recommendations to the 1987 General
Assembly. In the Report, the Commission observed that physicians
and other health care providers are more prone to addiction than
other similar groups due to high stress levels and easy access to
drugs. The Commission emphasized that no evidence has been
presented . . . that there is a proven correlation between
professional impairment and medical malpractice. Yet it is obvious
that the efforts of the profession to help itself should be
supported. Report and Recommendations to the 1987 General
Assembly, p. 16. The Commission therefore recommended that the
licensing boards of each of the health care professions beempowered to enter agreements with voluntary professional societies
to conduct peer review of impaired physicians; this recommendation
led directly to the enactment of G.S. § 90-21.22 and was followed
by the creation of the PHP.
It is clear, then, that the Legislature enacted G.S. § 90-
21.22 with the intent to encourage health care providers to seek
treatment for their impairments. By contrast, the legislative
intent underlying G.S. § 131E-95, as quoted in Shelton, supra, is
to encourage candor and objectivity in the internal workings of
medical review committees. Shelton at 83, 347 S.E.2d at 829.
Moreover, the stated purposes of the Hospital Licensure Act, of
which G.S. § 131E-95 is a part, are 'to establish hospital
licensing requirements which promote public health, safety and
welfare and to provide for the development, establishment and
enforcement of basic standards for the care and treatment of
patients in hospitals.' Id. at 80, 347 S.E.2d at 827 (quoting
N.C. Gen. Stat. § 131E-75). Thus, whereas G.S. § 90-21.22
emphasizes providing treatment to impaired health care providers,
the emphasis of G.S. § 131E-95 is on encouraging the candor and
objectivity required to enable medical review committees to improve
the medical treatment of the public at large. Allowing discovery
of documents that are otherwise available does not discourage the
candor and objectivity of medical review committees. By contrast,
allowing discovery of documents considered by the PHP, and which
are otherwise available, would undoubtedly discourage physicians
from seeking treatment for their impairments for fear that hospitals would deny them privileges to protect against liability.
In order to encourage health care providers to take full
advantage of the newly-formed PHP, the Legislature created a broad
privilege against discovery of information acquired, created, or
used in good faith by . . . a society by omitting an otherwise
available proviso like the one considered in Shelton, a case
decided the year before the Commission submitted its
recommendations to the Legislature. That it was the intent of the
Legislature to create a broader privilege in G.S. § 90-21.22 than
in peer review statutes such as the one at issue in Shelton is
further supported by the Legislature's liberal inclusion of
otherwise available provisos in numerous statutes governing the
discoverability of information produced by various medical review
committees. See, e.g., N.C. Gen. Stat. § 90-48.10 (dental review
committee); § 90-21.22A (medical review committee); § 122C-30 (peer
review committee of mental health facility); § 130A-45.7 (medical
review committee). It is telling that there are only two statutes
other than G.S. § 90-21.22 that deal with peer review organizations
for impaired members of medical occupations, and neither of these
statutes contains an "otherwise available" proviso. See N.C. Gen.
Stat. § 90-48.2 (1999) (peer review for impaired dentists); N.C.
Gen. Stat. § 90-85.41 (1999) (peer review for impaired
pharmacists). When combined with the Legislature's frequent use of
"otherwise available" provisos in medical peer review statutes, the
absence of such a proviso in all three of the statutes dealing with
peer review organizations for impaired health care providerspresents clear evidence that the Legislature intended to grant a
broader privilege to information produced pursuant to these
statutes than to information produced pursuant to peer review
statutes like the one considered in Shelton.
Plaintiff argues, however, that the information she seeks is
not "confidential patient information and other nonpublic
information," as required by subsection (e), due to Dr. Worland's
participation in Alcoholics Anonymous and defendant Hospital's
knowledge of his participation in the PHP. Chapter 90, Article 1D
of the General Statutes fails to provide a definition of "nonpublic
information." Where the General Statutes fail to provide a
definition of a term, it is appropriate to turn for guidance to
dictionaries. Beechridge Dev. Co. v. Dahners, 350 N.C. 583, 516
S.E.2d 592 (1999); Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d
260, (1981). Webster's Third New International Dictionary defines
nonpublic as not public and its definitions of public include
accessible to or shared by all members of the community and
exposed to general view. Webster's Third New International
Dictionary 1538, 1836 (1968). Black's Law Dictionary defines the
term public as meaning "[o]pen to all; notorious. Common to all
or many; general; open to common use. Black's Law Dictionary 1104
(5th ed. 1979). It follows that information that does not satisfy
this definition constitutes nonpublic information. Neither
defendant Hospital's possession of documents prepared by PHP nor
Dr. Worland's participation in Alcoholics Anonymous can reasonably
be said to render the information contained in the documents openor common to all or many. In both instances, access to information
pertaining to Dr. Worland's impairment is limited to only a handful
of individuals, and neither defendant Hospital nor Alcoholics
Anonymous discloses its knowledge of an individual's impairment to
the public. Therefore, the documents plaintiff seeks to discover
contain nonpublic information.
Nor does defendant Hospital's possession of the documents
relating to Dr. Worland's participation in the PHP serve to waive
the documents' confidentiality. As an initial matter, we note that
the record before this Court is unclear as to whether defendant
Hospital obtained these documents as part of its staff
credentialing process or through third party participation in the
PHP's treatment efforts. In either case, however, we do not
believe the confidentiality of the documents in question is waived
by the Hospital's possession of them. If the Hospital obtained the
documents pursuant to its staff credentialing procedures, we
believe that to allow discovery of these documents would seriously
undermine the clear legislative intent behind G.S. § 90-21.22. A
doctor who believes that a hospital, in order to protect itself
against liability, will deny him full privileges due to his
participation in the PHP, may decide not to participate at all,
contrary to the clear legislative intent of promoting such
participation.
Documents that may have come into defendant Hospital's
possession through third party participation in the PHP's treatment
of Dr. Worland are expressly privileged by subsection (e), which protects any "person participating in good faith in the . . .
impaired physician . . . programs of this section." We note that
Chapter 90, Article 1D of the General Statutes does not provide a
definition of who constitutes a "person" for the purposes of the
privilege set out in G.S. § 90-21.22. Absent such a definition,
however, the general rule of statutory construction holds that,
absent a clear legislative intent to the contrary, "person" should
be defined pursuant to G.S. § 12-3(6) (1999), which provides that
the term person applies to "bodies politic and corporate, as well
as to individuals." Jackson v. Housing Authority of City of High
Point, 316 N.C. 259, 341 S.E.2d 523 (1986). Thus, defendant Hospital, a corporate body, qualifies as a "person" under G.S. §
90-21.22(e). To the extent the PHP sought defendant Hospital's
participation in Dr. Worland's care and rehabilitation, the
Hospital is a person participating in good faith in the . . .
impaired physician . . . programs of this section. Any documents
in defendant Hospital's possession obtained as a third party
participant in Dr. Worland's treatment program are, therefore,
privileged.
Plaintiff argues, however, that defendant Hospital is not
protected by the privilege set forth in G.S. § 90-21.22 because the
information in its possession was not, as required by subsection
(e), acquired or developed solely in the course of participating
in any agreements pursuant to [G.S. § 90-21.22]. The "agreements"
referred to throughout G.S. § 90-21.22 refer to agreements entered
into between either the North Carolina Medical Board and the NorthCarolina Medical Society and its local medical society components
or the North Carolina Academy of Physician Assistants for the
purpose of conducting peer review activities. N.C. Gen. Stat. §
90-21.22(a). Since defendant Hospital is none of these
organizations, it cannot enter agreements pursuant to G.S. § 90-
21.22. This does not mean, however, that defendant Hospital cannot
be a third party participant in any agreements reached pursuant to
G.S. § 90-21.22. Thus, if defendant Hospital obtained information
about Dr. Worland's participation in the PHP through third party
participation, that information is privileged.
For the foregoing reasons, we conclude the documents sought by plaintiff are privileged and protected from discovery pursuant to G.S. § 90-21.22(e). Accordingly, we hold the trial court erred in denying Community Hospital's motion for protective order and in ordering Community Hospital to turn over all documents in its possession relating to Dr. Worland's participation in the PHP.
Reversed.
Chief Judge EAGLES and Judge McGEE concur.