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Armstrong v. Barnes7/5/2005
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Michael E. Weddington, for the North Carolina Physicians Health Program, Inc., amicus curiae.
James A. Barnes, Jr., M.D., ("Dr. Barnes") appeals a discovery order that compels him to provide deposition testimony regarding the details of his history of drug abuse and grants in part his motion for a protective order pursuant to N.C. Gen. Stat. § 131E- 95(b) (2003). The appeal additionally involves the trial court's failure to address the privilege afforded under N.C. Gen. Stat. § 90-21.22 (2003). We affirm in part and remand.
On 25 February 2000, Emily M. Armstrong (the "child") was born to Sandra Armstrong ("Mrs. Armstrong") and William Earl Armstrong ("Mr. Armstrong") at Catawba Memorial Hospital, Inc., now known as Catawba Valley Medical Center, Inc. ("Catawba Memorial"). Dr. Barnes, Mrs. Armstrong's obstetrician, managed her labor and delivered the child by cesarean section. Soon after birth, medical staff discovered the child had a brain injury. The child, through her guardian ad litem, Mrs. Armstrong, and Mr. Armstrong (collectively "plaintiffs") filed this action alleging that the child's brain injury resulted from the medical malpractice and negligence of Dr. Barnes, Catawba Memorial, and Dr. Barnes' employer, Newton Women's Care, P.A., (collectively "defendants") and from the negligent oversight and retention of Dr. Barnes by Catawba Memorial and Newton Women's Care, P.A.
Dr. Barnes has a history of drug abuse, which started in 1988 during his second year of residency. At that time, he sought help and treatment through the North Carolina Physicians Health Program (the "PHP"), an organization allied with the North Carolina MedicalBoard (the "Board") and created to aid impaired physicians. In 1991, Dr. Barnes completed treatment through the PHP, finished his residency, and practiced obstetrics and gynecology with a group practice in Catawba County.
In December 1993, Dr. Barnes relapsed and started abusing drugs again. As a result, his employment with the group practice was terminated two months later. In March 1994, Dr. Barnes sought professional help through the PHP and voluntarily surrendered his medical license to the Board. The Board issued Dr. Barnes a temporary medical license, which required periodic re-issuance, dependant on his compliance with mandatory drug abuse monitoring through the PHP (the "PHP drug monitoring").
In December 1994, Dr. Barnes started his own practice, Newton Women's Care, P.A., then initiated the credentialing process required by Catawba Memorial to regain medical staff privileges at its facilities. As part of this process, in May 1995, the Catawba Memorial credentialing committee (the "credentialing committee") required Dr. Barnes to appear and testify before them. Two months later, the credentialing committee granted Dr. Barnes medical staff privileges at Catawba Memorial conditioned upon his participation in drug abuse monitoring.
Dr. Barnes was monitored and complied for a number of years. However, during his deposition for the malpractice action, Dr. Barnes admitted he had relapsed and started abusing drugs again in April 2000. He obtained drugs by writing prescriptions for fictitious patients and filling the prescriptions in localpharmacies. In May 2000, his drug abuse was discovered through the PHP drug monitoring. The same month, he closed his practice and voluntarily surrendered his medical license to the Board. Dr. Barnes stated he was not abusing drugs during Mrs. Armstrong's prenatal care nor during the month or on the day the child was delivered.
During the deposition, plaintiffs asked Dr. Barnes several qu
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