Tort/Negligence – Personal Injury – Physician/Patient Privilege – Motion to Compel – Rule 11 Sanctions

Listen to this article

Brown v. Staten. (Lawyers Weekly No. 10-16-1185, 16 pp.) (Martha A. Geer, J.) Appealed from Lenoir County Superior Court. (Paul L. Jones, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: When a plaintiff alleges personal injury, she cannot refuse to provide medical records claiming physician/patient privilege. On the other hand, defendant cannot be forced to produce medical records if he has not raised his own medical issues in his answer.

When a court imposes sanctions under Rule 11, it must include findings of fact to support those facts. When a claim is dismissed with prejudice, the court must explain why less severe sanctions are not appropriate.

We affirm the trial court’s granting of the defendant’s motion to compel discovery and the denial of the plaintiff’s motion for production of medical records. We reverse and remand the imposition of Rule 11 sanctions and the dismissal with prejudice for entry of findings of fact.

Background

In 2008, plaintiff filed a complaint alleging that in September 2006 defendant Staten, driving a car owned by defendant Baptist Children’s Home of N.C., had negligently rear-ended her car. After the court signed an order granting plaintiff’s attorney’s motion to be removed, plaintiff proceeded pro se.

Defendants requested documents from plaintiff, including medical records for injuries arising out of the accident and medical records for the past 10 years as well as employment history. Defendants also served a notice of deposition.

Plaintiff delivered a response but failed to produce the documents, contending those records were protected by physician/patient privilege. Defendant’s counsel sent a letter canceling the deposition due to failure to provide complete discovery responses and then filed a motion to compel plaintiff to fully answer questions and produce documents. The trial court entered an order requiring that plaintiff sign releases so that defendants could obtain medical records.

Plaintiff served defendant with requests for admissions and interrogatories and requested, among other things, defendant Staten’s medical records, and then filed a motion to compel discovery. The trial court ordered that the motion to compel be dismissed for plaintiff’s failure to prosecute the motion.

Plaintiff served on defendants subpoenas duces tecum requesting the records. Defendants filed a motion to quash. Defendants moved for Rule 11 sanctions, contending the trial court had previously denied plaintiff’s motion to compel discovery of information plaintiff was requesting.

The trial court denied plaintiff’s second motion to compel and granted defendants’ motion to quash. The court, without making any findings of fact, ordered Rule 11 sanctions against the plaintiff in the amount of $300. The trial court later dismissed plaintiff’s complaint with prejudice.

Discussion

Plaintiff moved to strike defendant’s brief, saying it had not been served within the time allowed. We deny plaintiff’s motion as the defendants’ brief was put in the mail within the statutory limit.

Plaintiff contends the trial court erred in granting defendants’ motion to compel her to release medical records. Parties may obtain discovery that is relevant to the subject matter unless privileged. A patient impliedly waives the physician/patient privilege when bringing a claim in which her medical history is an issue.

Plaintiff alleges in the complaint she suffered “severe, painful and permanent injuries” as a result of defendant’s actions. She also alleges medical expenses and says she has been disabled. By making these allegations, she waived her physician/patient privilege.

Plaintiff also argues that the trial court erred by denying her motion to compel production of defendant’s medical records.

If a defendant does not in his answer raise the defendant’s medical condition in issues, there is no waiver of the defendant’s privilege. The court in Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003), pointed out that such medical information could be discoverable if “necessary to a proper administration of justice.” However, in that case, as in this one, the record is devoid of any allegations that might lead to a conclusion that the interests of justice outweighed the protected privilege. This case is indistinguishable from Mims.

Plaintiff also argues that trial court erred by granting the motion for Rule 11 sanctions. The rule allows the court to impose appropriate sanctions if a pleading or motion has no basis in law or fact or is interposed for a purpose such as harassment or delay. In reviewing a trial court’s decision to impose such sanctions, we must determine if the court’s conclusions of law are supported by its findings of fact. The trial court failed to enter findings of fact, so we must remand for findings of fact regarding how the plaintiffs conduct violated the rule, how the court arrived at the $300 sanction, and why $300 is an appropriate sanction.

As to whether the trial court properly dismissed the claim with prejudice, we note that if a party fails to obey an order to provide discovery, the trial judge can dismiss the claim. This court has held, however, that before dismissing a claim with prejudice, a trial court must consider less severe sanctions. In this case we vacate the order and remand for findings of fact addressing why less severe sanctions were not appropriate. Nothing in this opinion limits the court’s discretionary authority, on remand, to impose that sanction.

Plaintiff also contends the trial court was biased against her, but the record does not indicate that she moved to have the judge recused, so she has waived appellate review of this issue.

Affirmed in part; vacated and remanded in part.