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Windman v. Britthaven10/4/2005
In North Carolina, orders regarding discovery matters will not be upset on appeal absent a showing of abuse of discretion. Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 595, 551 S.E.2d 873, 877 (2001). Here, Defendants (who operate a nursing home) assert the trial court erred by compelling the production of statutory peer review documents that were privileged under N.C. Gen. Stat. § 90-21.22A(c) (2003). Because nursing home privileges are covered under N.C. Gen. Stat. § 131E-107 which at the time ofthe trial court's order contained no protection from discovery of materials produced by nursing home peer review committees, we uphold the trial court's order compelling discovery.
In August 2003, Plaintiff Deborah Windman brought actions against Defendants Britthaven, Inc. d/b/a Britthaven of Louisburg and Hillco, Ltd., seeking damages for the death of her father, James Pierce, while he resided at Defendants' nursing home facility. She alleged that Mr. Pierce suffered damages including a broken hip, pain and suffering, and wrongful death as a result of Britthaven's negligence.
In October 2003, Ms. Windman served Britthaven with Requests for Production of Documents seeking, inter alia, " ny and all incident/accident reports, unusual occurrence reports, or various reports in your control which relate or pertain in any way to James L. Pierce, including, but not limited to, any incident reports submitted to the N.C. Department of Human Resources as required by NCAC T10 :03H.0317(c)." In response, Britthaven asserted the documents were protected from discovery under the statutory peer review privileges of N.C. Gen. Stat. § 90-21.22A(c) (2003). Thereafter, Ms. Windman filed a Motion to Compel production of the documents and Britthaven filed a Motion for Protective Order.
After reviewing the incident report documents in camera, the trial judge granted Ms. Windman's Motion to Compel and denied Britthaven's Motion for Protective Order. From this Order, Britthaven appeals.
Preliminarily, we observe that the trial court's order compelling discovery is interlocutory from which there is generally no right to appeal. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (An order is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the rights of all parties involved in the controversy.).
Here, Britthaven claims a right to appeal based upon the established exception that delaying this appeal would prejudice a substantial right. See N.C. Dep't of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995); Liggett Group Inc. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993). Indeed, although discovery orders do not generally affect substantial rights, we find merit in Britthaven's assertion that this appeal falls under one of the recognized narrow exceptions to that rule _- where a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial. Sharpe v. Worland, 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). Because Britthaven asserts that the ordered documents were protected from discovery under section 90-21.22A of the North Carolina General Statutes and we find that that assertion is not frivolous or insubstantial, we hold that the discovery order affects a substantial right. Id. Accordingly, we deny Ms. Windman's motion to dismiss this appeal as interlocutory.
On appeal, Britthave
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