stating that "a plaintiff's recovery may not be reduced because [of] a source collateral to the defendant"
How later courts described this case
- stating that "a plaintiff's recovery may not be reduced because [of] a source collateral to the defendant"
- holding that collateral source evidence suggests to the jury that "plaintiffs are already fully compensated and [are] trying to obtain a double recovery" (internal quotation marks omitted)
- justifying its holding that Medicaid and other public benefit payments were a collateral source based, in part, upon the fact that N.C.G.S. § 108A-57 "entitles the *395 state to full reimbursement for any Medicaid payments made on a plaintiff's behalf in the event the plaintiff recovers an award for damages" and prevents "any 'windfall profit' for the plaintiff"
- holding that Medicaid benefits, checks received pursuant to the "Aid for Dependent Children" program, and child support payments constituted collateral sources
Written by the judges who cited it.
The opinion
Justice MITCHELL
concurring in result.
I concur in the result reached and in most of the reasoning contained in the scholarly and thoughtful opinion of the majority. I write separately, however, to express my disagreement with the ground upon which the majority resolves the question of the plaintiffs waiver of the physician-patient privilege. The majority follows Capps v. Lynch, 253 N.C. 18, 23 , 116 S.E. 2d 137, 141 (1960) in applying the rule that questions involving waiver of the physician-patient privilege are to be determined largely by the facts and circumstances of the particular case on trial. I am of the view that Capps was wrongly decided on this point and that we should not perpetuate the error further. Accordingly, I would take this opportunity to overrule Capps in this regard and apply the rule recognized by a majority of jurisdictions — which I think clearly is the correct rule — that the “bringing of an action in which an essential part of the issue is the existence of physical ailment should be a waiver of the privilege for all communications concerning that ailment.” 8 J. Wigmore, Evidence § 2389 (McNaugh *18 ton Rev. 1961); see also Annotation, Commencing Action Involving Physical Condition of Plaintiff or Defendant or Decedent as Waiving Physician-Patient Privilege as to Discovery Proceedings, 21 A.L.R. 3d 912 (1968 & Supp. 1987).
The fact that the treating physician’s knowledge and the condition of the plaintiff form the central issues in cases such as this, makes information concerning relevant medical treatments and conditions subject to discovery and use at trial. The rule applied in most jurisdictions is that in such cases, the physician-patient privilege is waived when the patient files a lawsuit which places his medical condition in controversy. See, e.g., Mull v. String, 448 So. 2d 952 (Ala. 1984); Trans-World Investments v. Drobney, 554 P. 2d 1148 (Alaska 1976); Mathis v. Hildebrand, 416 P. 2d 8 (Alaska 1966); Collins v. Bair, 252 N.E. 2d 448 (Ind. App. 1969); State ex rel. McNutt v. Keet, 432 S.W. 2d 597 (Mo. 1986); DeCastro v. New York, 54 Misc. 2d 1007 , 284 N.Y.S. 2d 281 (1967); Sagmiller v. Carlsen, 219 N.W. 2d 885 (N.D. 1974); Alexander v. Farmers Mutual Auto Ins. Co., 25 Wis. 2d 623 , 131 N.W. 2d 373 (1964); Awtry v. United States, 27 F.R.D. 399 (S.D.N.Y. 1961); Burlage v. Haudensheild, 42 F.R.D. 397 (N.D. Iowa 1967).
A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law. In my view, the “patient-litigant exception” precludes a party who has placed his medical condition in issue from invoking the physician-patient privilege to prevent the court from reaching the truth of the very issue he has raised. In this regard, a party simply “cannot have his cake and eat it too.” San Francisco v. Superior Court, 37 Cal. 2d 227 , 231 P. 2d 26, 28 (1951) (Traynor, J.).
This case presents a propitious opportunity to overrule our prior erroneous holding in Capps and to adopt the “patient-litigant exception” to the physician-patient privilege. By so doing, we would adopt the correct view and bring North Carolina into line with the majority of jurisdictions. This approach would not change the result in the present case, but would serve to give both Bench and Bar advance notice that we were adopting the only fair and just rule for such cases. I vote to do so now.
Justice Meyer joins in this concurring opinion.