The North Carolina Court of Appeals

issued an interesting decision today regarding privilege and discovery in medical negligence cases.

The case is Hammond v. Saini, No. COA 12-1493. Ms. Hammonds was badly injured when the defendants allowed oxygen from a mask to collect under surgical drapes placed over Ms. Hammond’s face. The oxygen ignited when Dr. Saini activated an electrocautery device, causing extensive internal and external burns to Ms. Hammond.

In the ensuing lawsuit, Ms. Hammond’s attorney requested that the hospital where the surgery was done (which was a defendant) produce documents related to its investigation of the incident. The hospital refused to produce these documents and claimed that they were privileged under the medical review privilege, the work product doctrine, and the attorney/client privilege.

The Court of Appeals held that the hospital did not demonstrate that the team that created the documents was (1) comprised of the medical staff of the hospital, nor (2) formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing, in a way that satisfies N.C. Gen. Stat. § 131E-76(5)(b).

Now, the question is, does this mean that these types of documents are now readily discoverable in a medical negligence case, or that the hospital’s attorney supplied the court with affidavits that did not support the privilege claims? I would bet the latter, but this is still an interesting case that will hopefully keep the defendants on their toes in medical negligence cases.