Williams v. Marchelle Isyk Allen

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-410

No. COA20-724

Filed 3 August 2021

Mecklenburg County, No. 18 CVS 8382

HANIA H. WILLIAMS as Executor and Administrator of the Estate of PATRICK

WILLIAMS, Plaintiff,

v.

MARCHELLE ISYK ALLEN, P.A., NILES ANTHONY RAINS, M.D., BRONWYN

LOUIS YOUNG II, M.D., EMERGENCY MEDICINE PHYSICIANS OF

MECKLENBURG COUNTY, PLLC d/b/a US ACUTE CARE SOLUTIONS, LLC, C.

PETER CHANG, M.D., CHARLOTTE RADIOLOGY, P.A., THE CHARLOTTE-

MECKLENBURG HOSPITAL AUTHORITY d/b/a CAROLINAS HEALTHCARE

SYSTEM or ATRIUM HEALTH, Defendants.

Appeal by defendants from order entered 24 March 2020 by Judge Forrest

Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 25

May 2021.

Knott & Boyle, PLLC, by W. Ellis Boyle, for plaintiff-appellee.

Dickie, McCamey & Chilcote, P.C., by John T. Holden, for defendants-

appellants Marchelle Allen and Emergency Medicine Physicians of

Mecklenburg County, PLLC.

TYSON, Judge.

¶1 Marchelle Isyk Allen, P.A. and Emergency Medicine Physicians of

Mecklenburg County, PLLC (“EMP”) (collectively “Defendants”) appeal from an order

filed 24 March 2020 compelling production of a document claimed as privileged by

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Defendants. We remand for additional findings of fact and conclusions of law.

I. Background

¶2 Patrick Williams (“Williams”) suffered back, stomach, and hip pains, which

worsened throughout the morning and afternoon of 6 May 2016. Williams’ wife,

Hania H. Williams, (“Plaintiff”) took Williams to the Piedmont Urgent Care-Baxter

in Fort Mill, South Carolina.

¶3 Williams could not get out of the car at Piedmont Urgent Care-Baxter. After

speaking with Plaintiff, staff at Piedmont Urgent Care-Baxter called 911 for

assistance. Williams’ condition was not evaluated by a healthcare provider at

Piedmont Urgent Care-Baxter. Emergency Medical Services responded to Piedmont

Urgent Care-Baxter, moved Williams into an ambulance, and transported him to the

emergency department (“ED”) at Carolinas Medical Center Pineville Hospital (“CMC-

Pineville”). Williams arrived in the ED at 3:52 p.m.

¶4 Dr. Brownyn Louis Young, II ordered 7.5 mg of oral hydrocodone and 600 mg

of ibuprofen for Williams. The record does not show whether these medicines were

issued pursuant to “standing orders” by Dr. Young, or if he had evaluated Williams

prior to these orders being administered. Around 4:50 p.m., Physician Assistant

Marchelle Allen (“Allen”) met with and evaluated Williams. Williams reported he

was experiencing increasing lower back pain that radiated down his left leg. Allen

ordered 4 mg of morphine, 10 mg of Decadron, 10 mg of Flexeril, 4 mg of Zofran, and

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2021-NCCOA-410

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an x-ray to be administered to Williams’ spine.

¶5 Dr. C. Peter Chang read the x-ray and reported “no acute osseous abnormality”

and “unusual linear calcifications seen to the right and left of the lumbar spine along

the retroperitoneum likely vascular in nature.” Dr. Chang noted the x-rays were

“negative for acute pathology, . . . negative for acute bony abnormality . . . [and] show

vascular calcifications.”

¶6 Allen did not order further diagnostic tests for Williams. Williams was

diagnosed with “left lumbar radiculopathy.” Allen ordered prescriptions for Flexeril

and hydrocodone. Williams was discharged from CMC-Pineville with instructions to

schedule an office visit with OrthoCarolina “within 2-4 days.” Dr. Niles Anthony

Rains signed Williams’ record of the treatment provided by Allen on 7 May 2016 at

6:36 a.m.

¶7 Once home, Williams took the prescribed hydrocodone every six hours, but his

pain persisted. Williams also developed abdominal pains. Williams returned to the

CMC-Pineville ED on 7 May 2016 at 9:56 p.m. Williams presented with low blood

pressure and reported severe abdominal pain.

¶8 Dr. Rains ordered a CT angiogram of Williams’ chest, abdomen, and pelvis with

an IV contrast. Dr. Charlie McLaughlin read the images and diagnosed Williams

with a ruptured abdominal aortic aneurism measuring 12 x 9.7 centimeters. Dr.

Rains contacted the ED at Carolinas Medical Center Main (“CMC-Main”) about

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Opinion of the Court

transferring Williams for immediate surgical repair of the ruptured aneurism.

Williams was transferred to CMC-Main by helicopter. Surgery to repair the ruptured

aneurism was unsuccessful in saving Williams’ life. Williams was pronounced dead

at 3:24 a.m. on 8 May 2016.

¶9 Dr. Rains spoke with Allen on 9 May 2016 and informed her of Williams’ death.

Dr. Rains also relayed to Allen Plaintiff’s 7 May 2016 statement to emergency

department staff if anything should happen to Williams, she would be filing a claim

against the personnel who treated him during his 6 May 2016 visit. Dr. Rains

instructed Allen to memorialize her interactions with and treatment of Williams on

an electronic form provided by her EMP group employer.

¶ 10 Williams’ estate brought this action for wrongful death on 2 May 2018, and

Plaintiff asserted claim for loss of consortium. Plaintiff requested production of

documents relating to investigation by Defendants and any information related to

Defendants’ interactions with and their care provided to Williams.

¶ 11 Allen submitted a privilege log identifying a four-page “diary” entry she had

written on 10 May 2016, concerning the event claiming: “Work Product, and Prepared

by the Defendants in anticipation of litigation, peer review.” Plaintiff filed a motion

to compel on 17 July 2019 pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(a) (2019).

Plaintiff sought the production of a four-page document identified as typed notes

Allen had created 10 May 2016, as identified in the privilege log produced on 11 July

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2019. After hearing from the parties and examining the document at issue, the trial

court granted Plaintiff’s motion to compel and the four-page document was delivered

to Plaintiff.

¶ 12 Allen was deposed on 30 October 2019. During Allen’s deposition, her “diary”

entry was presented to her, and the existence of an additional document was

discovered. This additional two-page document was not included in Defendants’

privilege log, and it was withheld from disclosure due to Defendants’ claim of Medical

Review Committee and other privileges under N.C. Gen. Stat. § 90-21.22A (2019).

Allen created this document utilizing EMP’s company website and submitted it to

risk management.

¶ 13 Plaintiff filed a motion to enforce her previous motion to compel, pursuant to

N.C. Gen. Stat. § 1A-1, Rule 37(b) (2019). In her motion, Plaintiff argued Allen’s diary

entry that was eventually produced was not in fact what they were seeking in their

first motion to compel hearing. Plaintiff alleged she was seeking this second

document submitted to risk management and the arguments made by Defendants’

counsel at the motion to compel hearing about privilege and peer review were

asserted to this second document. Plaintiff argued the asserted privilege could not

relate to Allen’s diary entry. After hearing from the parties, reviewing the affidavits,

and conducting an in-camera review of the disputed second document, the trial court

granted the motion, but ordered the subject document to be kept under seal, pending

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appeal. The trial court denied Plaintiff’s sanctions motion and awarded no fees or

sanctions. Defendants appealed.

II. Jurisdiction

¶ 14 “An order compelling discovery is generally not immediately appealable

because it is interlocutory and does not affect a substantial right that would be lost if

the ruling were not reviewed before final judgment.” Sharpe v. Worland, 351 N.C.

159, 163, 522 S.E.2d 577, 579 (1999). Our Court has held: “As a general proposition,

only final judgments, as opposed to interlocutory orders, may be appealed to the

appellate courts.” Hamilton v. Mortg. Info. Servs., Inc., 212 N.C. App. 73, 77, 711

S.E.2d 185, 188 (2011) (citations omitted).

¶ 15 “Appeals from interlocutory orders are only available in exceptional cases.” Id.

(citation and internal quotation marks omitted). Our rules “against interlocutory

appeals seek[] to prevent fragmentary, premature and unnecessary appeals by

allowing the trial court to bring a case to final judgment before its presentation to the

appellate courts.” Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666,

669, (2000) (citation omitted).

¶ 16 “No hard and fast rules exist for determining which appeals affect a

substantial right. Rather, such decisions usually require consideration of the facts of

the particular case.” Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240, 249

(1984) (citations omitted).

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Opinion of the Court

¶ 17 An order compelling or enforcing discovery or for sanctions may be

immediately appealable if it affects a substantial right under N.C. Gen. Stat. §§ 1-

277 or 7A-27(b)(3)a (2019). A substantial right is invoked when a party asserts a

statutory privilege, which directly relates to the matter to be disclosed, and the

assertion of the privilege is not “frivolous or insubstantial.” K2 Asia Ventures v.

Trota, 215 N.C. App. 443, 447, 717 S.E.2d 1, 4 (2011) (citation omitted). Orders

compelling discovery of materials asserting protection by the medical review privilege

affects a substantial right and are immediately reviewable on appeal. Hammond v.

Saini, 229 N.C. App. 359, 362, 748 S.E.2d 585, 588 (2013), aff’d as modified, 367 N.C.

607, 766 S.E.2d 590 (2014). This issue is properly before this Court.

III. Issue

¶ 18 Defendants argue the trial court erred by granting Plaintiff’s motion to enforce

its previous motion to compel production.

IV. Motion to Compel

A. Standard of Review

¶ 19 “Whether or not the party’s motion to compel discovery should be granted or

denied is within the trial court’s sound discretion and will not be reversed absent an

abuse of discretion.” Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App.

579, 585, 440 S.E.2d 119, 123, disc. rev. denied, 336 N.C. 615, 447 S.E.2d 414 (1994).

“To demonstrate an abuse of discretion, the appellant must show that the trial court’s

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ruling was manifestly unsupported by reason, or could not be the product of a

reasoned decision.” Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 601,

617 S.E.2d 40, 45 (2005) (internal citation omitted), aff’d per curiam, 360 N.C. 356,

625 S.E.2d 779 (2006). Questions of statutory interpretation are reviewed de novo.

State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011).

B. Analysis

¶ 20 The medical review committee privilege is “designed to encourage candor and

objectivity in the internal workings of medical review committees.” Shelton v.

Morehead Mem’l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986). The party

asserting the privilege bears the burden of proof. Wachovia Bank v. Clean River

Corp., 178 N.C. App. 528, 531, 631 S.E.2d 879, 882 (2006).

¶ 21 Defendants argue the “fundamental and sole requirement for members of a

medical review committee under N.C. Gen. Stat. § 90-21.22A” is that they be licensed.

To claim the medical review committee privilege under the statute, a claimant must

demonstrate the committee is composed of “healthcare providers licensed under this

chapter,” the committee be “formed for the purpose of evaluating the quality of, cost

of, or necessity for health care services, including provider credentialing,” and the

documents must be “produced or presented” by the medical review committee. N.C.

Gen. Stat. § 90-21.22A (2019).

¶ 22 The trial court did not make the requested findings of fact or conclusions

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Opinion of the Court

concerning these statutory elements. When asked specifically to do so by counsel, the

trial court declined to rule about whether the peer review privilege applied or not.

When requested, the trial court’s findings of fact and conclusions of law must be

sufficiently detailed to allow for meaningful appellate review. Coble v. Coble, 300

N.C. 708, 714, 268 S.E.2d 185, 190 (1980).

¶ 23 Defendants’ counsel correctly sought clarification of the ruling and requested

the trial court to make specific findings and conclusions. “Without setting forth

findings of fact, this Court cannot conduct a meaningful review of the conclusions of

law and test the correctness of the trial court’s judgment.” Earl v. CGR Dev. Corp.,

242 N.C. App. 20, 24, 773 S.E.2d 551, 554 (2015) (citations, alternations, and internal

quotation marks omitted).

¶ 24 The order of the trial court is remanded for factual findings and conclusions of

whether Defendants carried their burden to demonstrate the peer or medical review

committee they are relying on is composed exclusively of licensed providers under

Chapter 90, formed for the purpose of evaluating the quality of the healthcare

provided, and whether Allen’s document was actually “produced or presented” at the

request of her medical superior to the medical review committee in order to properly

invoke the privilege under the statute. See N.C. Gen. Stat. § 90-21.22A.

V. Conclusion

¶ 25 The trial court failed to make the Defendant’s requested and requisite findings

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Opinion of the Court

of fact and conclusions for meaningful appellate review of the Defendants’ burden to

invoke the privilege. Id. Upon remand, the trial court is free to hear arguments or

receive additional material to make and enter factual findings and conclusions

consistent with the requirements of N.C. Gen. Stat. § 90-21.22A. It is so ordered.

REMANDED.

Judge JACKSON concurs.

Judge MURPHY dissents with separate opinion.

No. COA20-724 – Williams v. Allen

MURPHY, Judge, dissenting.

¶ 26 Without the document at issue contained in the Record before us, we cannot

meaningfully review the trial court’s order granting enforcement of Plaintiff’s

preexisting motion to compel. For that reason, I would hold Defendants waived this

issue by failing to comply with the requirements established by our rules of appellate

procedure, and dismiss the appeal on those grounds.

¶ 27 Even setting aside this error by Defendants, I would nonetheless affirm the

trial court’s order, and hold Defendants failed to satisfy their burden of production in

asserting the medical review committee privilege provided by N.C.G.S. § 90-21.22A.

Further, contrary to the Majority’s holding, the trial court was not obligated to make

specific findings of fact in its order concerning the statutory elements of Defendants’

medical review committee privilege claim. Consequently, I find it unnecessary to

remand this matter to the trial court. For all of these reasons, I must respectfully

dissent.

ANALYSIS

A. Insufficient Record on Appeal

¶ 28 Defendants appeal the trial court’s order granting Plaintiff’s motion to enforce

an existing motion to compel discovery pursuant to N.C.G.S. § 1A-1, Rule 37(b). After

learning of the existence of a document in a 30 October 2019 deposition of Defendant

Allen, Plaintiff filed a motion seeking its disclosure on 21 November 2019. The trial

court entered an order on 24 March 2020 (the “Order”) that stated, in relevant part:

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MURPHY, J., dissenting.

Plaintiff’s [m]otion for enforcement of the existing [o]rder

pursuant to Rule 37(b) is granted. . . . The [trial] [c]ourt has

ordered that this document that [] Defendants handed up

under seal during the hearing be maintained under seal by

the Clerk’s office pending the time for any appeal to be

filed, and if appeal is taken, to remain there until the

outcome of that appeal is completed before actually

producing it to the other parties[.]

¶ 29 As the Majority correctly states, the Order stipulates that the document at

issue be maintained under seal, pending appeal. Supra at ¶ 13. However, the fact

that the document is maintained under seal does not relieve Defendants of their “duty

. . . to ensure this Court has everything needed for a proper review of [the] issues on

appeal.” Gilmartin v. Gilmartin, 263 N.C. App. 104, 107, 822 S.E.2d 771, 774 (2018)

(citing State v. Davis, 191 N.C. App. 535, 539, 664 S.E.2d 21, 24 (2008)), disc. rev.

denied, 372 N.C. 291, 826 S.E.2d 702 (2019).1

¶ 30 Rule 9 of the North Carolina Rules of Appellate Procedure, which governs the

record on appeal, states in relevant part:

(a) . . . . In appeals from the trial division of the General

Court of Justice, review is solely upon the record on appeal

1 See also Doe v. Doe, 263 N.C. App. 68, 71-72, 72 n.2, 823 S.E.2d 583, 586 & n.2 (2018)

(reviewing a sealed court file in its entirety in camera); State v. McCoy, 228 N.C. App. 488,

492, 745 S.E.2d 367, 370 (2013) (“During the preparation of the record on appeal, [the]

defendant’s appellate counsel requested and obtained a copy of the sealed [document] from

the trial court.”), disc. rev. denied, appeal dismissed, 367 N.C. 530, 762 S.E.2d 462 (2014);

Daly v. Kelly, 272 N.C. App. 448, 453 n.7, 846 S.E.2d 830, 833 n.7 (2020) (“This Court has

reviewed the records under seal[.]”); Premier, Inc. v. Peterson, 255 N.C. App. 347, 352, 804

S.E.2d 599, 603 (2017) (noting “we considered all of the documents and testimony under

seal”).

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MURPHY, J., dissenting.

....

(1) . . . . The record on appeal in civil actions and

special proceedings shall contain:

...

e. so much of the litigation . . . as is necessary

for an understanding of all issues presented

on appeal . . . ;

...

j. copies of all other papers filed . . . in the trial

court which are necessary to an

understanding of all issues presented on

appeal unless they appear in the transcript of

proceedings . . . ;

....

(c) Presentation of Testimonial Evidence and Other

Proceedings. . . . .

....

(4) Presentation of Discovery Materials. . . . . In all

instances in which discovery materials are

considered by the trial tribunal, other than as

evidence offered at trial, the following procedures for

presenting those materials to the appellate court

shall be used: . . . . discovery materials, including . .

. motions to produce, and the like, pertinent to issues

presented on appeal, may be set out in the record on

appeal or may be sent up as documentary exhibits.

N.C. R. App. P. 9(a)(1)(e), (a)(1)(j), (c)(4) (2021). Notwithstanding the fact this sealed

document is central to our ability to meaningfully review the issues presented in this

appeal, Defendants failed to include it in the Record, send it as a documentary

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MURPHY, J., dissenting.

exhibit, or provide it under seal.

¶ 31 The failure to follow the rules of appellate procedure “ordinarily forfeit[s] [a

party’s] right to review on the merits.” Dogwood Dev. & Mgmt. Co. v. White Oak

Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008). “[T]he appellate court

may not consider sanctions of any sort [including dismissal] when a party’s

noncompliance with nonjurisdictional requirements of the [appellate] rules does not

rise to the level of a ‘substantial failure’ or ‘gross violation.’” Id. at 199, 657 S.E.2d at

366. “In determining whether a party’s noncompliance with the appellate rules rises

to the level of a substantial failure or gross violation, the [appellate] court may

consider, among other factors, whether and to what extent the noncompliance

impairs the court’s task of review.” Id. at 200, 657 S.E.2d at 366.

¶ 32 Here, Defendants’ Appellate Rules violation is the failure to include the

document at issue in the Record on appeal. In the absence of this document, “we

cannot, without engaging in speculation,” assess the merits of the Order granting

Plaintiff’s motion, or the claim by Defendants that the document is covered by medical

review committee privilege under N.C.G.S. § 90-21.22A. CRLP Durham, LP v.

Durham City/Cty. Bd. of Adjustment, 210 N.C. App. 203, 212, 706 S.E.2d 317, 323

(“From the record before us, we cannot [review the issue presented], without engaging

in speculation . . . as [the] petitioner failed to include in the record on appeal any

portion of the [document at issue].”), disc. rev. denied, 365 N.C. 348, 717 S.E.2d 744

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MURPHY, J., dissenting.

(2011). This violation severely impairs our ability to conduct meaningful appellate

review and rises to the level of a “substantial failure” and “gross violation.” Dogwood,

362 N.C. at 199, 657 S.E.2d at 366.

¶ 33 Upon concluding the noncompliance rises to a level of a substantial failure or

gross violation, the next step is to “determine which, if any, sanction under Rule 34(b)

should be imposed. [] [I]f . . . dismissal is the appropriate sanction, [the final step is

to] consider whether the circumstances of the case justify invoking Rule 2 to reach

the merits of the appeal.” Id. at 201, 657 S.E.2d at 367.

¶ 34 Rule 34(b) of the North Carolina Rules of Appellate Procedure provides:

(b) A court of the appellate division may impose one or more

of the following sanctions:

(1) dismissal of the appeal;

(2) monetary damages including, but not limited to,

a. single or double costs,

b. damages occasioned by delay,

c. reasonable expenses, including reasonable

attorney fees, incurred because of the

frivolous appeal or proceeding;

(3) any other sanction deemed just and proper.

N.C. R. App. P. 34(b) (2021). Dismissal is appropriate here because without the

document at issue contained in the Record, we cannot determine whether the trial

court erred in granting Plaintiff’s motion to enforce the existing motion to compel.

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MURPHY, J., dissenting.

“[I]n a case such as this, and in order to ensure better compliance with the appellate

rules, . . . dismissal is appropriate and justified.” Ramsey v. Ramsey, 264 N.C. App.

431, 437, 826 S.E.2d 459, 464 (2019). The only way we could reach the merits of this

case is by invoking Rule 2.

¶ 35 Rule 2 “may only [be invoked] on rare occasions and under exceptional

circumstances to prevent manifest injustice to a party, or to expedite decision in the

public interest[.]” Dogwood, 362 N.C. at 201, 657 S.E.2d at 367 (marks and citations

omitted). The decision whether to invoke Rule 2 is purely discretionary and is “to be

limited to occasions in which a fundamental purpose of the appellate rules is at stake,

which will necessarily be rare occasions.” State v. Hart, 361 N.C. 309, 316, 644 S.E.2d

201, 205 (2007) (marks omitted). Nothing in this matter demonstrates any

“exceptional circumstances” to suspend or vary the appellate rules. Dogwood, 362

N.C. at 201, 657 S.E.2d at 367. The circumstances of this case do not justify invoking

Rule 2, and I would decline to reach the merits of the case on that basis. However,

because the Majority addresses the merits of the case and I disagree with its analysis

and resolution, my dissent must also encompass the merits in the following sections.

See N.C. R. App. P. 16(b) (2021) (“When the sole ground of the appeal of right is the

existence of a dissent in the Court of Appeals, review by the Supreme Court is limited

to a consideration of those issues that are (1) specifically set out in the dissenting

opinion as the basis for that dissent[.]”). I would hold the Order should be affirmed

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MURPHY, J., dissenting.

for the reasons discussed in Parts B and C, below.

B. Burden of Production under N.C.G.S. § 90-21.22A

¶ 36 Even if the appeal was not dismissed for failure to produce the document at

issue, I would nonetheless affirm the Order, as Defendants failed to produce evidence

that they are entitled to the medical review committee privilege set forth in N.C.G.S.

§ 90-21.22A.

¶ 37 Located in Chapter 90, Article 1D of our General Statutes, N.C.G.S. § 90-

21.22A provides:

(a) As used in this section, the following terms mean:

(1) “Medical review committee.” - A committee composed of

health care providers licensed under this Chapter [90] that

is formed for the purpose of evaluating the quality of, cost

of, or necessity for health care services, including provider

credentialing. “Medical review committee” does not mean

a medical review committee established under [N.C.G.S. §]

131E-95.

(2) “Quality assurance committee.” - Risk management

employees of an insurer licensed to write medical

professional liability insurance in this State, who work in

collaboration with health care providers licensed under

this Chapter, and insured by that insurer, to evaluate and

improve the quality of health care services.

(b) A member of a duly appointed medical review or quality

assurance committee who acts without malice or fraud

shall not be subject to liability for damages in any civil

action on account of any act, statement, or proceeding

undertaken, made, or performed within the scope of the

functions of the committee.

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MURPHY, J., dissenting.

(c) The proceedings of a medical review or quality

assurance committee, the records and materials it

produces, and the materials it considers shall be

confidential and not considered public records within the

meaning of [N.C.G.S. §§] 132-1, 131E-309, or 58-2-100; and

shall not be subject to discovery or introduction into

evidence in any civil action against a provider of health

care services who directly provides services and is licensed

under this Chapter . . . , which civil action results from

matters that are the subject of evaluation and review by

the committee. . . . . However, information, documents, or

records otherwise available are not immune from discovery

or use in a civil action merely because they were presented

during proceedings of the committee. . . . .

(d) This section applies to a medical review committee,

including a medical review committee appointed by one of

the entities licensed under Articles 1 through 67 of Chapter

58 of the General Statutes.

(e) Subsection (c) of this section does not apply to

proceedings initiated under [N.C.G.S. §] 58-50-61 or

[N.C.G.S. §] 58-50-62.

N.C.G.S. § 90-21.22A (2019) (emphasis added).

¶ 38 The parties dispute the burden required to demonstrate compliance with

N.C.G.S. § 90-21.22A. Specifically, Plaintiff argues “Defendants had to affirmatively

prove that all members of its nation-wide central medical review committee . . . were

Chapter-90-licensed health care providers under North Carolina law.” Defendants

assert that because the term “health care provider” as used in N.C.G.S. § 90-

21.22A(a)(1) is not defined in Chapter 90 general definitions, we must look to

definitions contained in other articles to interpret its meaning. Defendants

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MURPHY, J., dissenting.

specifically point to the definition of “health care provider” in N.C.G.S. § 90-21.11,

located in Chapter 90, Article 1B of our General Statutes, which states, in pertinent

part:

The following definitions apply in this Article [1B]:

(1) Health care provider. - Without limitation, any of the

following:

a. A person who pursuant to the provisions of Chapter 90

of the General Statutes is licensed, or is otherwise

registered or certified to engage in the practice of or

otherwise performs duties associated with any of the

following: medicine, surgery, dentistry, pharmacy,

optometry, midwifery, osteopathy, podiatry, chiropractic,

radiology, nursing, physiotherapy, pathology,

anesthesiology, anesthesia, laboratory analysis, rendering

assistance to a physician, dental hygiene, psychiatry, or

psychology.

N.C.G.S. § 90-21.11(1)(a) (2019) (emphasis added). Defendants’ argument is

unpersuasive, as the application of this proposed definition would contravene basic

principles of statutory interpretation.

Statutory interpretation properly begins with an

examination of the plain words of the statute. If the

statutory language is clear and unambiguous, the court

eschews statutory construction in favor of giving the words

their plain and definite meaning. However, where the

statute is ambiguous or unclear as to its meaning, the

courts must interpret the statute to give effect to the

legislative intent. Canons of statutory interpretation are

only employed if the language of the statute is ambiguous

or lacks precision, or is fairly susceptible of two or more

meanings.

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MURPHY, J., dissenting.

JVC Enters. v. City of Concord, 376 N.C. 782, 2021-NCSC-14, ¶ 10 (citations and

marks omitted). The plain words of N.C.G.S. § 90-21.22A indicate a medical review

committee must be composed of “health care providers licensed under [Chapter 90.]”

N.C.G.S. § 90-21.22A(a)(1) (2019). The statute is clear and unambiguous–it contains

no contradictions, and it is not “fairly susceptible of two or more meanings.” JVC,

376 N.C. 782, 2021-NCSC-14 at ¶ 10. Consequently, we must interpret its words in

accordance with their plain and definite meaning, and need not look to definitions in

other articles, consider legislative intent, or employ other canons of statutory

construction. Id. By its plain language, N.C.G.S. § 90-21.22A requires members of a

medical review committee to be health care providers licensed under Chapter 90, to

wit, to be licensed by North Carolina. In addition, N.C.G.S. § 90-21.11 explicitly

states “[t]he following definitions apply in this Article[,]” and contains no indication

that the definition of “health care provider” located in Article 1B in N.C.G.S. § 90-

21.11(1) would apply to other articles within Chapter 90. N.C.G.S. § 90-21.11 (2019)

(emphasis added).

¶ 39 “[D]efendants, as the parties objecting to the disclosure of the [document] on

the basis of this privilege, bear the burden of establishing that [P]laintiff’s discovery

request[] fall[s] within the scope of the privilege.” Hammond v. Saini, 229 N.C. App.

359, 365, 748 S.E.2d 585, 589 (2013), modified and aff’d by 367 N.C. 607, 766 S.E.2d

590 (2014). To satisfy their burden in claiming the medical review committee

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privilege, Defendants needed to prove to the trial court’s satisfaction that every

member of the qualifying medical review committee is a health care provider licensed

under Chapter 90. N.C.G.S. § 90-21.22A(a)(1) (2019). Defendants attempted to meet

their burden by filing an affidavit of Justin Otwell, Esq. (“Otwell”), the Vice President

of Claims and Risk Management at an affiliate corporation of EMP. Otwell’s affidavit

“sets forth the procedure by which EMP set up its medical review committee and how

materials are submitted to that committee.” Otwell’s affidavit states:

At the time that Mr. Williams was seen by Ms. Allen, EMP

had a central medical review committee. This was a

committee composed of licensed healthcare providers

which was formed for the purpose of evaluating the quality,

costs and necessity for the healthcare services provided by

EMP. It also was created and empowered to evaluate and

improve the quality of healthcare services provided by

EMP’s doctors and physician’s assistants.

As part of the work of the medical review committee,

providers could, in appropriate circumstances, provide

information to the committee about patient care for

evaluation by the committee. One way such information

could be supplied to the committee in 2016 was via a

computer program available at EMP locations throughout

the country. A provider would enter information about the

patient, and it would be transmitted to the medical review

committee for evaluation.

In the case of Mr. Williams, Ms. Allen supplied information

to the medical review committee utilizing a computer

terminal at CMC Pineville hospital. This information was

supplied to the committee via a computer generated form.

Attached to this affidavit as “Sealed Exhibit A” is the form

generated by Ms. Allen in May 2016 and submitted to the

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MURPHY, J., dissenting.

committee with information about Mr. Williams. “Sealed

Exhibit A” was used as part of the proceedings of the

medical review committee at EMP and was generated for

the purposes of that committee. This document was not

created as part of the medical record in this case, and it is

not a publicly available document.

This document was provided to John Holden, our North

Carolina counsel on [5 November 2019], at his request.

It is my understanding that the activities and proceedings

of a medical review committee, including the materials it

considers, shall be confidential and are not public records

under [N.C.G.S. §] 90-21.22A. The document attached to

this affidavit as “Sealed Exhibit A” is part of the

proceedings of the committee and was generated for the use

of the committee in evaluating patient care. As such, I

would respectfully request that it be withheld from

discovery.

It is imperative that the actions of medical review

committees be confidential and that the materials

considered and generated by them not be utilized in

litigation, to ensure full openness in the activities of the

committee. These committees are utilized by medical

organizations, including EMP, to improve patient care and

as a learning tool for clinicians.

¶ 40 Defendants asserted Otwell’s affidavit demonstrated the document at issue

“clearly falls within the privilege set forth in [N.C.G.S.] § 90-21.22A for medical

review committee documentation.” However, nowhere in his affidavit does Otwell

state the names of the members of the committee or their status as health care

providers licensed under Chapter 90 of the North Carolina General Statutes. While

arguments alone would not carry Defendants’ burden as they are not evidence, it is

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MURPHY, J., dissenting.

important to note that at no point in their arguments at the trial court or on appeal

have Defendants argued that the committee is “composed of health care providers

licensed under [Chapter 90.]” N.C.G.S. § 90-21.22A(a)(1) (2019). By failing to include

information plainly required for an assertion of medical review committee privilege

under N.C.G.S. § 90-21.22A, Defendants did not meet their burden of production,

much less any burden of proof, and are not entitled to the privilege they seek. For

this reason, I would affirm the Order.

C. Defendants’ “Requested” Findings Concerning N.C.G.S. § 90-21.22A

¶ 41 The Majority states “[t]he trial court did not make the requested findings of

fact or conclusions concerning [the] statutory elements [in N.C.G.S. § 90-21.22A]” and

holds the Order must be “remanded for factual findings and conclusions.” Supra at

¶¶ 22, 24. I disagree. Defendants failed to make a specific request to the trial court

for findings of fact and the trial court was under no obligation to provide findings of

fact in the Order. For these reasons, it is unnecessary to remand the Order to the

trial court.

¶ 42 Rule 52 of the North Carolina Rules of Civil Procedure, which governs findings

by a trial court, provides:

Findings of fact and conclusions of law are necessary on

decisions of any motion or order ex mero motu only when

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MURPHY, J., dissenting.

requested by a party and as provided by Rule 41(b).[2]

Similarly, findings of fact and conclusions of law are

necessary on the granting or denying of a preliminary

injunction or any other provisional remedy only when

required by statute expressly relating to such remedy or

requested by a party.

N.C.G.S. § 1A-1, Rule 52(a)(2) (2019) (emphasis added). Citing our Supreme Court’s

decision in Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980), the Majority

asserts that “[w]hen requested, the trial court’s findings of fact and conclusions of law

must be sufficiently detailed to allow for meaningful appellate review.” Supra at ¶

22. However, the Majority’s reliance on Coble is taken out of context.

¶ 43 In Coble, the defendant challenged a trial court’s order requiring her to provide

partial child support on the grounds that she was capable of contributing child

support payments and the plaintiff was entitled to contribution from her. Coble, 300

N.C. at 709, 268 S.E.2d at 187. Our Supreme Court remanded the case for further

evidentiary findings and stated:

[T]he requirement that the [trial] court make findings of

2 Rule 41(b) of the North Carolina Rules of Civil Procedure, which specifically pertains

to the dismissal of actions, provides: “After the plaintiff . . . has completed the presentation

of his evidence, the defendant, without waiving his right to offer evidence in the event the

motion is not granted, may move for a dismissal on the ground that upon the facts and the

law the plaintiff has shown no right to relief. The [trial] court as trier of the facts may then

determine them and render judgment against the plaintiff or may decline to render any

judgment until the close of all the evidence. If the [trial] court renders judgment on the

merits against the plaintiff, the [trial] court shall make findings [of fact] as provided in Rule

52(a).” N.C.G.S. § 1A-1, Rule 41(b) (2019). Here, the trial court entered an interlocutory

order; it did not grant a motion to dismiss the proceedings. Thus, the trial court was not

required to make findings of fact in its Order under Rule 41(b).

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those specific facts which support its ultimate disposition

of the case is . . . to allow the appellate courts to perform

their proper function in the judicial system.

Under [N.C.G.S. § 50-13.4(c)] an order for child support

must be based on the interplay of the trial court’s

conclusions of law as to (1) the amount of support necessary

to meet the reasonable needs of the child and (2) the

relative ability of the parties to provide that amount. These

conclusions must themselves be based upon factual

findings specific enough to indicate to the appellate court

that the judge below took due regard of the particular

estates, earnings, conditions, and accustomed standard of

living of both the child and the parents.

....

Effective appellate review of an order entered by a trial

court sitting without a jury is largely dependent upon the

specificity by which the order’s rationale is articulated.

Evidence must support findings; findings must support

conclusions; conclusions must support the judgment.

Id. at 712, 714, 268 S.E.2d at 1889, 190. (citations and marks omitted) (emphasis

added). This language demonstrates the order in Coble was remanded for “further

evidentiary findings” due to the trial court’s failure to comply with the specific

requirements for an order for child support under N.C.G.S. § 50-13.4(c). Id. at 714,

268 S.E.2d at 190. Given that the present case does not involve an order under

N.C.G.S. § 50-13.4(c), the Majority improperly relies on Coble in support of a premise

for which it does not stand.

¶ 44 Further, contrary to the Majority’s assertion (without reference to the Record),

Defendants did not specifically request that the trial court make any findings of fact

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at the hearing held on 31 January 2020. Supra at ¶ 23. Defense Counsel had the

following exchange with the trial court:

THE COURT: . . . . I’m going to direct that that document

be provided to [] [P]laintiff. Now, at this time, I’ll retain it

under seal (clears throat) in the file . . . .

[DEFENSE COUNSEL]: Well, Your Honor, that’s what I

wanted to clarify because as you know the, uh, legitimate

and bona fide assertion of a privilege, even is – is not an

interlocutory appeal. So, I just need – if the [c]ourt can

clarify and perhaps this can be worked out, whether you

are ruling the privilege was waived, the privilege doesn’t

apply, the privilege is – somehow defeated so that we can

establish the parameters of the argument for [the] Court of

Appeals ---

THE COURT: Uh-huh.

[DEFENSE COUNSEL]: --- if that should be the case.

...

[PLAINTIFF’S COUNSEL]: Your Honor, not to object, but

it may help if the question is posed as, “Are you granting

the [m]otion for 37(b) to enforce an existing order?”

THE COURT: Yes, yes.

[DEFENSE COUNSEL:] So, you’ll – so, if that – so, the

[c]ourt’s order, as I understand it is that the peer review

privilege that was identified in the original privilege log

was the subject of the or- of the argument before Judge

Ervin is overruled and it is – the privilege is (inaudible) as

to this document, that you have found?

THE COURT: The – what my ruling is specifically is that

the issues before me today were encompassed by the order

of Judge Ervin, and therefore my order is pursuant to Rule

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MURPHY, J., dissenting.

37(b) that, um, [] [P]laintiff is entitled to enforce the order

of Judge Ervin and that enforcement will require the

production of this particular document.

....

[DEFENSE COUNSEL]: . . . . So, you’re saying you’re

basing – you’re enforcing his prior ruling, even though our

position is it was a different document that we were

arguing about in front of him? You’re saying it was the

same document and the argument ---

THE COURT: I’m not saying it’s the same document. I’m

saying that this document was responsive to the request

for discovery that were [sic] before Judge Ervin at that

time. So, that in response to those discovery requests, this

document should have been identified and if a privilege

was claimed, it should’ve been asserted as to this particular

document.

[DEFENSE COUNSEL]: Okay. Because today we’ve had a

lot of arguments about the nature – we’ve had arguments

about the nature of the committee that reviewed it in the

system and all that. I just want to know if that’s going to

be part of the issue that’s going to be taken into – that could

be potentially taken up. I don’t know. I assume my client

is going to want to parti- protect their – their medical

review committee and that’s not casting (inaudible) on

anyone in this room ---

THE COURT: I know.

[DEFENSE COUNSEL]: --- I’m just saying, I assume that’s

going to be their position.

THE COURT: Sure.

[DEFENSE COUNSEL]: So, it needs to be as – as clear as

we can get it. So, you know, I don’t know if [Plaintiff’s

Counsel] and I can go back and forth and find something

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that would – that would satisfy, Your Honor.

THE COURT: Yeah. Why don’t – y’all [Defense Counsel

and Plaintiff’s Counsel] work on the order and I’ll take a

look at what you draft, and we’ll go from there. . . .

....

[DEFENSE COUNSEL]: Is it your position it’s the same

doc – because he was looking at a document and he ordered

it to be produced and we produced it ---

THE COURT: Yeah.

[DEFENSE COUNSEL]: --- and now we’re being told that

we didn’t comply with his order by producing a different

document. So, that’s what I’m trying to figure out how to –

how to craft this. I understand the [c]ourt’s ruling, I just

want to put it in a box where I can explain it.

THE COURT: Yeah, I don’t know that I can answer that

question until I can see each version of the proposed orders.

....

THE COURT: All right. Anything else we need to address?

[DEFENSE COUNSEL]: No.

¶ 45 This exchange demonstrates that Defense Counsel sought clarification

pertaining to the trial court’s ruling on the privilege to “establish the parameters of

the argument” for an appeal, and stated that he “[understood] the [c]ourt’s ruling,”

but wanted “to put it in a box where [he could] explain it.” When the trial court

declined to answer Defense Counsel’s questions at the time, and asked if anything

else needed to be addressed, Defense Counsel replied “[n]o.” Based on this exchange,

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it is apparent that Defendants only requested detailed conclusions of law, but made

no specific request for the trial court to make findings of fact in accordance with Rule

52, and accordingly, the trial court was under no obligation to make such findings.

See Brown v. Brown, 47 N.C. App. 323, 325, 267 S.E.2d 345, 347 (1980) (“[T]he record

fails to show that [the] defendant requested [] findings [of fact] . . . . Absent request,

the [trial] court is not required to find facts . . . .”); Kolendo v. Kolendo, 36 N.C. App.

385, 386, 243 S.E.2d 907, 908 (1978) (“[I]f no request is made by the parties to a

hearing on a motion, then the trial [court] is not required to find the facts upon which

he bases his ruling.”).

¶ 46 As no findings of fact were specifically requested by Defendants, and were not

required by statute, we must “presume[] that the [trial] court on proper evidence

found facts to support its judgment.” Brown, 47 N.C. App. at 325, 267 S.E.2d at 347.

Adopting this presumption, I would hold it is patently unnecessary to remand this

matter for further evidentiary findings.

CONCLUSION

¶ 47 Defendants failed to include the document at issue in the Record on appeal,

send it as a documentary exhibit, or provide it under seal. This failure was a violation

of the appellate rules, and due to the severe impact on our ability to conduct

meaningful appellate review, Defendants’ noncompliance rose to the level of a

substantial failure and gross violation. Dismissal is the appropriate remedy under

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Rule 34, and the circumstances of this case do not justify invoking Rule 2.

¶ 48 Setting aside this violation, as the Majority implicitly does, I reach the merits

and fully dissent from the Majority’s analysis. I would hold the Order should be

affirmed. Defendants failed to produce evidence that they are entitled to the medical

review committee privilege set forth in N.C.G.S. § 90-21.22A. In addition, Defendants

did not specifically request that the trial court make any findings of fact and the trial

court was not obligated under any authority to do so. For these reasons, I disagree

with the Majority’s decision to remand for further findings and respectfully dissent.