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Armstrong v. Barnes7/5/2005
22A(c), or 131E-97.2 to the extent it required Dr. Barnes, an original source with respect to the details of his drug abuse, to answer all questions concerning the details of his drug abuse even if the same questions were asked at the credentialing committee hearing. However, the trial court's order does not address how the privilege applies to other aspects of the credentialing committee's proceedings, the records and materials it produced, and the materials it considered. Therefore, upon remand, the trial court is instructed to determine whether other information sought by plaintiffs is of a type privileged under N.C. Gen. Stat. §§ 131E- 95(b) and 90-21.22A(c) and to amend its order to protect any such information.
Dr. Barnes finally asserts the trial court erred by requiring him to answer questions even if they were asked at the credentialing committee hearing because plaintiffs' counsel was improperly allowed to attend the hearing and was improperly provided hearing documents and a partial transcript. Specifically, Dr. Barnes argues the opposing counsel's knowledge of the hearing prejudices him because (1) plaintiffs have access to documents and testimonial records that ordinarily would be unavailable through discovery and (2) the counsel's presence at the hearing makes it impossible to distinguish between information from original sourcesand information generated by the credentialing committee. Dr. Barnes contends this prejudice can only be prevented by forbidding any further discovery regarding his drug abuse and credentialing.
Assuming arguendo plaintiffs' counsel was improperly allowed to attend the hearing and was improperly provided with hearing documents, Dr. Barnes will be afforded his full statutory privilege and will be required to answer only those questions concerning the details of his drug abuse, which are not privileged. The record discloses that plaintiffs obtained evidence of Dr. Barnes' drug abuse from public records separate from their counsel's knowledge of the hearing, in particular: (1) the 31 August 1994 Board of Medical Examiners Order regarding Dr. Barnes, which stated Dr. Barnes had a history of drug abuse, had relapsed, and agreed to surrender his medical license for the issuance of a temporary license and (2) newspaper articles regarding Dr. Barnes' disciplinary history and surrender of his license. Therefore, public records would inform any plaintiff that Dr. Barnes had a drug abuse problem. Accordingly, we hold no prejudice will inure to Dr. Barnes through discovery due to opposing counsel having learned of his drug abuse not only from the public records but also presumably from the hearing.
We have carefully reviewed Dr. Barnes' remaining arguments and consider them to be without merit. For the foregoing reasons, we (1) remand to the trial court for entry of an order in favor of Dr. Barnes protecting those matters privileged under N.C. Gen. Stat. § 90-21.22(e); (2) affirm the trial court's order requiring Dr.Barnes to answer deposition questions regarding the details of his drug abuse even if the same questions were asked at the credentialing hearing; and (3) instruct the trial court upon remand to determine whether other information sought by plaintiffs is of a type privileged under N.C. Gen. Stat. §§ 131E-95(b) and 90- 21.22A(c) and to amend its order to protect any such information.
Affirmed in part and remanded.
Chief Judge MARTIN and Judge GEER concur.
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