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Mayfield v. Hannifin11/15/2005
ng physician. Defendant has not brought forward in its brief a number of other assignments of error; they are deemed abandoned. N.C.R. App. 28(b)(6).
Communications Between Defendant and Dr. Bartko
Defendant argues that the faxed communication from defendant to Dr. Bartko on 1 August 2002 did not violate Crist and Salaam because the communication was not ex parte as plaintiff's counsel received a copy. Defendant does not, however, dispute that plaintiff never consented to this communication.
In Crist, a medical malpractice case, our Supreme Court upheld a finding by the trial court that defense counsel had acted improperly by talking privately with plaintiff's non-party treating physicians. Crist, 326 N.C. at 331, 389 S.E.2d at 44. The Supreme Court concluded that:
he gravamen of the issue is not whether evidence of plaintiff's medical condition is subject to discovery, but by what methods the evidence may be discovered. We conclude that considerations of patient privacy, the confidential relationship between doctor and patient, the adequacy of formal discovery devices, and the untenable position in which ex parte contacts place the nonparty treating physician supersede defendant's interest in a less expensive and more convenient method of discovery. We thus hold that defense counsel may not interview plaintiff's nonparty treating physicians privately without plaintiff's express consent. Defendant instead must utilize the statutorily recognized methods of discovery enumerated in N.C.G.S. § 1A-1, Rule 26.
Id. at 336, 389 S.E.2d at 47. This Court in Salaam held that the principles in Crist applied equally in the worker's compensation context. Salaam, 122 N.C. App. at 88, 468 S.E.2d at 539. While Salaam and Crist both involved oral communications, this Court confirmed in Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 30, 514 S.E.2d 517, 523 (1999) that Crist and Salaam alsocontrolled with respect to written communications between an employer and the plaintiff's treating physicians.
Defendant focuses exclusively on the question whether the facsimile could be considered an ex parte communication. In doing so, however, it overlooks a fundamental aspect of Crist. After holding that the statutory waiver of the physician/patient privilege addressed only whether certain information could be disclosed, the Court observed that "the question remains by what procedures and subject to what controls the exchange of information shall proceed." Crist, 326 N.C. at 334, 389 S.E.2d at 46. The Court then pointed out that " ther courts have concluded that formal discovery procedures enable defendants to reach all relevant information while simultaneously protecting the patient's privacy by ensuring supervision over the discovery process, via presence of counsel or judicial intervention, if warranted." Id. The Court rejected the defendant's objection to depositions as being expensive and time-consuming as well as its objection regarding the tactical advantage given to the plaintiff as "'insignificant when compared with the patient-plaintiff's interest in maintaining the confidentiality of personal and possibly embarrassing information, irrelevant to the determination of the case being tried.'" Id. at 335, 389 S.E.2d at 46 (quoting Nelson v. Lewis, 130 N.H. 106, 111, 534 A.2d 720, 723 (1987)). For that reason, the Court held that " efendant instead must utilize the statutorily recognized methods of discovery enumerated in N.C.G.S. § 1A-1, Rule 26." Id. at 336, 389 S.E.2d at 47.
In short, Crist not only forbid ex parte communications between a defendant and a plaintiff's physician, but also expressly limited the methods by which a defendant may o
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