# Cates v. Wilson

> Supreme Court of North Carolina · November 5, 1987 · 321 N.C. 1

URL: https://www.frixlaw.com/law-library/cases/9573805

## Case

- **Full name:** MORGAN REED CATES, by His Guardian Ad Litem, WACHOVIA BANK & TRUST COMPANY, N.A.; And JOYCE REED CATES, Individually v. STANLEY C. WILSON; JEFFREY A. TODD; And STANLEY C. WILSON and JEFFREY A. TODD, a Partnership
- **Court:** Supreme Court of North Carolina
- **Decided:** November 5, 1987
- **Citations:** 321 N.C. 1; 361 S.E.2d 734; 1987 N.C. LEXIS 2508
- **Precedential status:** Published
- **Opinion:** Concurrence by Mitchell
- **Judges:** Exum, Mitchell, Meyer
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9573805

## How later opinions describe it (automated extraction)

- 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)
- holding that Medicaid benefits, checks received pursuant to the "Aid for Dependent Children" program, and child support payments constituted collateral sources
- explaining that Medicaid is "social legislation; it is the equivalent of health insurance for the needy" and "is an acceptable collateral source"

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9573805. Public record. Not legal advice.